an< ^ ,
O Mi* Sacred
LONDON:
^S8 iruiuca oy R o » e r. t darker.. Printer t&
•§§§ . the Kings mod Excellent Majeftie: And by
<|P§ the Affignes of John Bile.
MDCXLII.
'M
£$$ *SF ?§5^' S
[ Humble |]S
~0T — -
TheG&NTRY, Ministers, an
others of the Counties of Cumberland
and Weflmerland , to His Sacred
M a i e s t iR ;
COPYHOLDER
Wherein is contained a
Learned difcourfe of the An-
tiquity and Nature of Manors and
COF2 "-HOLDS.
With all things thereto Incident ?
Neceflary, both for the L Wand Tenant.
ogether, with the torme of keeping a
Copy hold Court , and Court-Baron. b
fONDOJV,
Printed fet Matthew Wtibatfck. and Richard
Surrenders.
Y Forfeitures.
v CuHomes . &c-
To the Reader.
His Copie comming
to my hands y peru^
fed y and Teyeren'
ced by men Lear -
neb in the Lowes,
f thought mofl worthy of Tublu
cation. The very name of the:
oompofer, who hath beene an
Ornament to our Kingdom e , is
'nough to give itfufficient author
ttiSy and indeere it to every wife
pinion. Tut the profit which doth
Wendy is mojl conjiderable , it be -
A z ing
Toil
ie Reader i
in?afub\e r d fo m*tetiall,declaring
S Untimtie of Manors and
Copiholds ; and Witten for the
.J of Lords and Tenants ;
"and by confequence of all men : H
cannot but receive a becommm »
entertainment* the confidence
of ibis truth , I ref erreit toalltu-
dicious perufallpot a little congra-
minting my ome bappineffe, to
have beene an inftrument of bring-
i„o fo excellent a piece from ok
fern tie, for the benefit of the Com-
mon -wealth,
C(
taiiia
(0
MANORS
AND
COPY-HOLDS.
in
0
[ «,l
k
P
lt(l
,o
Section I.
Hough a Manor and
Copy- hold have
fucn mutuall re-
Ipeft. and red pro-
call reference one
to the other, as
that they are al-
moft in nature of Relatives ; yet the
knowledge of the ond cannot be' at-
tained unto , unlefle the fenfe of the
other be truly apprehended : fora
Manor is as the body, and copyholds
certaine member's of thisbody.In this
Treatifc I will difcotirfcofthemfcve-
rally, and begin with thb Maiior it
B felft
(»
felfe efpcdally, when common reafon
teacheth us , that totum magit iBufirat
partes, quit* psrtts a lifts ijlufirant to.
turn.
Sec. II.
T te1vSWx0«(who held E ngl*
fubje&io immediately befror
gland in
| jore the
comming of the Normans') were unac-
quainted with thcfe Manors, yet in ef-
fcft they had Manors in thofe daies in
circumftance,peradventure fomething
varying in fubftance, furely nothing
difLringfrom ouruunors at t his day:
they wanted neither deniefties nor
fervices , the two materiall caufes of a
Fnlbeck in his Manor,as Fulbet ^terraeth them: their
fourth Deca- J enie fncs they termed Inlands, beratile
logllC- the Lords kept them in their owne
hands, and enjoyed them in their own
poffeflton ; their fervices they termed
Utlan ;s,becaufe thofe Lands were in
the nnnurance and occupation of cet-
taine Tenants, who in confederation
of. the profits arifing out of thefe
lands, were bound to performe unto
their Lords, certaine duties and fervi-
ce*?
( 3 )
fe ceS: their demelhes were of two forts*
& their fervices likewile were of two
l!f forts.
sec. in.
/ A
O N E fort or their Demelhes was
termed Bockland , becaufe they
Wi pafled by booke,and they in effcft dif-
wi fcred nothing front our Freehold
« lands at this day;
tW
l«
cite Sfec. IV,
)ik
liiil
si ns npH E other fort of their Demelhes
ifeoi _| was termed Folklands , becaule
ictki they palled by Polls,and were claimed
caul and challenged by the Tenants j not
: me by any i durance in writings, but only
(jut by the month of the people, Per vocem
Id®* popteli 5 and they in efTeft differed in
sreteii nothing from Copyhold I ands at this
iota day.
d#i» S E V.
ftte
tieut '"T'Onching their Services.one fort
oJfcfi I. of their Services were Scrvitia li-
es . B 2 btrj,
or in P tender gs where the Lord re(er-
ved three (hillings , and foure loads of
Eftovers for fucll to be taken yearcly
in his Tenants grounds.
SVcl VI.
T H E other fort of Services, weie
ServitiavtUana , which confided
altogether io Feafance , as to fcoure
the Lords ditches , to tile his houfes,
to thatch his barnesjor fuch like.
Sec. VII
A ND in the refervation of thefe
Services,the Lords had a fpeciall
refpeft unto the quality of the Land :
Did they transferre their Bocklands,
hoc «/I,F ree-hold Lands, they would
never refet've Villeine Services $ did
M
1 |
u
rf
i
b
sot
i]
i®
ifd
OR
lis,
lei
:il
inisi
oiilJ
&
C5>
they transferee their Kolk-I and*. lot
r/LCopyhbld Lands,they%ouId neveir
relerve free Send ces-but mft ; they iuir-
ed their Services according to the na-
ture of the Land. The realon I gather
was this, in thoie dayes done but rijen
of good accounc ana Reckoning en-
joyed the (aid Bock-iafici^ , whereas
Holblatids ‘were in the hands of men
of meaner tort & condition: and ther-
fore had not the Lords care beenex-
traordinkry in reserving apt Service, . t .
they fliould have nnicti wronged their e^t:arion of
Tenants; aud thus much Lambert ve- the
rifieth, faying. Terra exjeriptofuit In- Terra txjcrifttn,
reditaria, libera^ atque immutns : terra
verb fine fit ipto ojficiorum quadam fervi-
tutefiiif obligata: prwrem plemmque no-
biles atque ingen tsi , poflerio/cm verb ru-
fiici fieri & P agani pnjfidebant. Lambert
ternaeth thefe BocklandsjTfrr^ liber as
atque immums , non quod ab omnibus
firvititi Jutmm Ultra mttmtmnes , fed
quod tenant ei ipfi fitment libari &■ firvi-
tiU tan turn liber is onerali. But I much
wonder , why this Bockland doth to
this day rfitaine the name of Freehold
land, ii the nee time hath bred fiich an
alteratidn.thac in the point of Service,
B 3 a man
oo
a man can fcarce difcerne any diffe-
rence becweene F reebold Lands and
Copyhold Lands.The favorable hand
of time hath fb infranchifed thefe
Copyholders,that whereas in the So-
xms time, their Services did confift
wholly in Feafance ; now they confift
in Render, in U r er , and in Prcnder,
as Free-holders Services did in thofe
dayes. And cm the oth<.r fide, time
hath dealt fb unfavorably with Free-
holders, and hath fo abridged them
of their former freedoipe, that if you
compare the Service of the Freehold-
ers with the Service of the Copyhold-
ers, Senties kune potiui quam ilium fort
liberum. How many Freeholders are
there at this day , charged with bafe
Services? as many J doubt not, as
there are Copyholders. No marvell
then that many able men turne Copy-
holders, and many Pezants turn Free-
holders; no marvel 1 , I fay, that men
ofall forts apd conditions, promifeu-
oufly, both Freeholders and Copy-
holders, fi thence there is fuchfhiall
refpeft had unto the quality of the
Land in the refervation of our Servi-
ces. Yet obferve, I pray, though time
( 7 )
hath fo infranchiled thefe Copyhold-
ers, that they have in a manner thaken
off all villaine Service, yet they ruain
a badge of their former bondage, for
they remains dill fubjeft to their
Lords will; therefore at this day they
are termed Tenants at wiil : But with
F reehplders otherwile it is ; for they
are not in that fubjeftion to their
Lords : peradventure in this refpeft
only Bocklands may be termed Free-
hold Lands , and Folkland Villaine
Lands: and yet time hath dealt very
favorably with Copyholders in this
point of Will , as well as in the point
of Service,
Sec. VIII.
F O R,as I conje&ure.in the Saxons traCUib 4-
time } fure I am , in the Nymans,
time, thole Copy holders w ere fo larre ^
fubjett to the Lords will , that eorum ca j,^\ m
tttientes tcmpeJUvc & intemp ejliic pro
voluntate Domini pojjent refumi & revo -
cari , as Bratton and Flet* both fpeake:
The Lords upon the leaft occafion 3
(ometinies without any colour of rea-
(b n , onely upon difcomentment and
B 4 malice;
(8)
malice } fometimes asairte upon (ome
fudden fantaftick humour, onelyilo
make evident to the world the height
of their power and authority , would
expell out of houfe and home their
poore Copyholders, leaving them
helpelefle and remedilefle by any
courfe of Law, and driving them to
foe by way of petition.
Sec. IX.
/ 1 r
T> U T now Copyholders (land up-
XJon a fore ground, now they weigh
not their Lords difpleafore;they ftake
not ac every fuddaine blaft of winde,
they eate, drinke, and fleepe fecurely,
onely having a fpeciall care of the
main-chance (viz.y to performe care-
fully what duties and fervices foever
their Tenure doth exact, & Cuftome
doth requirejthen let the Lord frown,
the copyholder cares not, knowing
hinrfelfe (afe,and not within any dan-
ger: for if the Lords anger grow to ex-
pul fion, the Law hath provided feve-
rall weapons of remedy; for it is at
his elefhon, either to foe a Sub p£na,
or an a&ion of Trefpafle againft the
Lord
id
t'i4i
B
¥
ins
m
foe
tftei
tit!
k
tit
tit
*
A
ft
n
I
(?)
« Lord.Time hath dealt very favorably
Ijfo with copyholders in divers relpe&s.
tfe Sec. X.
tic
ti| T> U T I perceive my (elfe ralhly
l* 1) running into an inextricable La-
byrinth,! will therfore (ail no longer
in thefe unkown coafts , but will ha-
ften homewards, I will content myfelf
with this.I know amongft the Saxons
iduj the eflentiall parts of , a Manor were
TO know n j bu t whether there then were
flat the lame form of Manors which is at
lini this day , that I dare not examine, for
urely, feare of being accounted more curi-
oftk ous than judicious, and therefore lea-
cut- ving the Saxons , I draw fomewhac
k« nearer home, and come to the Nor-
lome mans , from whom we had the very
own, form of Manors which is obferved a-
mongft us at this prelent houre.
ooc-
fcffr
is at
w,
Itk
d
Sec. XL
I Confefle indeed, that fithence the
Originall creation of Manors, time
hath
(io)
hath brought in fo'tne innovations and
alterations, as in giving a large free-
dome unto Copyholders, both in the
nature’of their fervice,andin the man-
ner of theirTcnure. Yet I may boldly
fay, that the fell-fame form of Manors
remain unaltered in fubflance, though
femthing altered in circumftance.De'
mdhe termed in Latine Demaniti Ve-
maniuoiDemitiicujs taken in a double
fenle, proprit & imp r opr it. Yroprie , for
cbvphimtH dt that Land which is in the Kings owne
VojnauiofYvntt ^^nds 5 3nd the faith * that
lib.i. Domanium tfl iUud quod confect a turn
unilurn , dtincorporatnmefl regia Coro- 1
r<t> take Domanium in this fenfe , and
then ' ou exclude all common per-
sons from being feiled in Dominico : for
admit the King pafle over the De-
mesne Lan ds , as foone as they come
into a common perfons hands , dtfinmt
tjfe terra Dominic Acs j for though the
Kings Pattcntee hath the land gran-
ted to him, and -to his Heires, yec
cornming from the King mufl necet
far ily be holdcn of the King, it is con- '
trary to the nature of Detnefne Lands
to be holden of any;therefore though
thofe lands which are commonly ter-
med
*> me d ancient Demefne, viz. fuch lands
*■ as w ere qttond. in the hands of Ed. the
& conftJT. may properly be termed gene-
rally ancietDeme(h,becau(e they were
in ancient timein the Kings own pot
w fedion , yet to t erme them at th is day
i the Lords Demefnes, or the Tenants
•Df Demefnes being fevered from the
h Crown is improper cj. qu^fufer.
uble
1
i* Sec. XII.
tk
m ^-p^Hen by this it appeareth that
jn | thoie land s are termed ,»«/>» opnc ,
an Demc(he,which are in the hards of an
jo inferiour Lord or Tenant , nor can
>:t« (uch a one in propriety of (peech bee
[)(• faid to {land fcifed of any Land what-
orae foever in Dominica fuo , but it you ob-
(iKni (erve narrowly the manner of plea*
aiht dings , the words are ufed in a pro-
itai' per (enfe , for you (hall never findc
pfi that an inferiour Lord or Tenant," ill
rf plead that he is (imply feized in Domi-
:on- tiico , but fti 11 with this addition , n
mds Vomini o fuo ut de ftodo , and that very
ug)i aptly /orchis word Fee implieth thus
ter- much, thathiseftateisnotabfolute,
Bra H* lib . 4.
numb*)*
but depending upon Corns fuperiour
Lord : therefore I conclude with the
Feudijis , that a common perlon may
aptly be laid to Hand ieiled in Feodo,
or in Oominico fuo ut dc food. but im-
properly in Domiriico Ci mply ; the King
iconvcrfo may properly bee faid to
ifand leiled Domitiico limply } but in
Feodi improperly , or in Domimco fud
ut de feodo. BraEton divideth thele
Demelhe Lands into two branches;
under the firft are comprehended
thole Lands which the Lord injoycch
in his own pofleflion ; under thele-
cond, thole Lauds which areinthc
hands of the inferior Copyholders:
His words are thele , Dominicum di .
citur quod quit hibet ad mnfam fuam
& idcirco ts fnglkt vucat.Bordland •
dicitur etiam Dominicum villiriagium
quod traditur villanii , quod quit tern-
pefthe & mnmpefiive refuritere potfit ,
pro zoluntatt fua S revocart.
Sec. XIII.-
F Leta agreeth with BraUon in this
divifion, and unto thele two he
addesmore forts of Demelhe Lands:
t * His
[ ftw
diifl
pieiu
\ cfltoi-
mfre
c iri }
h
mr
m
i !/"
Mt
cm
P
m
fit
tH\
Ti
3r H« Words arc thde ; D ominicnm ejt
v. multiplex ; efi autem Dommictim pro-
is jt’J'tc fern* tnettfam afiizpata & villi- ~' 1
■ nagium , traditur viUauir ad tx-
jj,' cokndum , f tempefiive, & mtempefii-
~ t/epro voluntate Domini, & poterit revo-
cari 3 ficut efi.de terra commiffa teneud.
M quam diu commi fieri placuerit : poterit
, ffrdici deminiettm de quo quit baht li-
. hrum tenementum aliter curam de cu-
jj, fiodeJici potent & cur at ore quorum U-
.... mts dtcitur ab horxhu, alius in jure,Do-
u mink um etUm dicitur ad diferentiam
efi ejw quod tetietur- inf ervitio. Domini-
^ cum (Unique efi omne iHud tenementum
de quo anted for obiit fefitut , nec refert ,
\ cum ufu f rutlu vel fine 3 &dc quo ft e-
- 1 jeSur efiet recuperare pofiit per ajfifant
note defeijme licet alitu haberet ufum
", ' fru8um % (icut dtei poterit de iUii qui te-
neut in villenagio^qui utuntur dr fruuti-
' tur non nomine proprio fed nomine domi-
* nifui. ' ■
Sec. XIV.
^T^His opinion cfRrafton and Fleta ,
JL both contenting in one,tbat O-
V pyhold Land is parccll of the Lords
^ demelhes
Si '-d
demefnes, wanteth not modern au-
thority to fecondit , for I tliz. in
theE xcheq. 1 findc it adjudged in the
cafe cf a common perfon,howfoever it
is otherwil in the Kings cafe; That if
the Lord of a Manor gfateth away om-
nts terras Jhm dominie alt /• the Copy-
holds parcell of Manors pafle by thefe
general words ; ndther doth this watit
Reafon to confirme it ; for in the time
of Henry the 3. and £. 2. when Bra 8 .
and Fleta lived, Copyholders were
accompted meer Tenants at will ,and
therefore after afore their Lands repu-
ted to continue ftill in the Lords hands
and now , though cuftcme hath affor-
ded them a furcr foundation to build
upon , yet the Franck Tenement at
tne common law, refling in the Lord,
it can be no flrange thing to place
their lands under the ranke of the
Lords demefhc s. But to deliver my
minde more freely in this point, I
thinke that howfoever , according to
the ftrift rules of Law , thefe Copy-
holders are parcell of Lands demefnes,
yet in propriety of fpeech (if proprie-
ty can be in impropriety ) they are
more aptly called the: Copyholders
demefnes
Os)
j. siemelhes; f^r though the Frank te-
la nemenc be in theLord by the common
lit Law , yet by the cuftome the inhe-
iti ritancc abidetb in the Copyholders ;
jti 1 and it is not denied , if a Copyholder
j# be impleaded in making title to his
Copyhold, he may juftly plead, quod
tfl JiiJlttM Dominica fuo , with this addi-
ut tion yfcimdum conjuttudintm Manerii.
■tit Therefore I conclude, that howfoever
tf,it the common Law valtieth the title of
iK: the Copyholder , yet he hath fitch an
|| jj tntereft confirmed unto him by Cu-
;f r ftome, that the Lord having no power
bn to refume his Lands at his own plea-
ia | fure , they are ( though improperly )
„y called ( yet perad venture truly ac-
m , counted) the 1 ordsdcmelhes^ad that
In the eye of the world} howfoever it
ip | ac be in the eye of the Law , that thtfe
„{ j, Lands alone can properly challenge
Krir the name ot the Lords demefnes(if any
^ j Lands in the pofleflion of inferior
Lords, may properly challenge that
, name) which the Lord referveth in his
own hands, for the maintenance of his
owne Boord or Table; be it his wade
1C L ground, his arable ground,his pafture
ijjj' ground, or his medow ; be it his Co-
«f» w hold
pyhold which he hath by efcheat , by
forfeiture, or by purchalej or be it any
part of his Freehold-Land, of which
Imuft fpeake a word by the way , not
to prove that it is dcmefne,for, mani-
fejia probative non indigent* , but to
ftiew you in what (enfe it is taken, and
how farre it extendeth.
Sec. XV.
A Freehold is taken in a double
fenle ; cither ’tis named a Free-
hold i n refpe& of the ftate of the land,
or in refpeft of the ftate of the Law.
S e c. XVI.
I N relpeft of the ftate of the Land,
Copyholders may be F reehold-
er$;for any that hath any eftate for his
life, or any greater eftate in any Land
whatlbever, may in this denfe be ter-
med a Freeholder.
Sec. XVII.
I N refpe&of the ftate of the Law 5
and fo it isoppofed to Copyhold-
ders
(* 3 )
«r *, that what Land foeveris not Co
pyhoJd, is Freehold: and in this fenfc I
; take throughout this Difcourfe.
(ft
A
Sec. XVIII.
T H E name of Freeholders exten-
deth not only unto Lands held
» P cr fervitium militart , as it did by the
mi ancient lawes of Setts ,amongft w horn
r, Freeholders were knowne by the
name of tmlitts : but it reacheth like*
wife to Lands holden per firvitiu Soct,
whether in Itbtro Socagie, or in viJlaao
md, Socagio. Liberum Socagiumis, where
)! J. any Tenant holds of any Lord by pay-
ing yearely a certain Gimme of money
Ji in lieu of tillage, and fuch like fervi-
( ia. ces, and not by efeuage; and this is ter-
med fometimes, common Socage.
Socagium villsrtum is where the an-
cient fervices of carrying the Lords
dung into the fields , of plowing his
aw; ground at certainedayes, of plafhing
old- his hedges; and filch are not turned in-
to to money.but reraaine ftill unaltered;
b and
and if you doubt that fitch Land as is
held per villanum Socagium , cannot
come within the compafle of F reehold
Land: for your fatisfa&ion, read Bra.
5m y lib. 2 . cap. §. num.S. Hattwtu dt
primo Jefitn&ionii membto $ ai (ecundum
properemM,& pauca cU Jervitiie Domim
debit ii pertraUemw .
Services in individuo are manifold,
in fpecit threefold, i. Corporall fer-
vices. 2. Annuall fervices, 3. Acci-
dental! fervices.
Corporal fervices are of two (ortsj
fervices ofSubmiffion, fervices of Pro-
fit-
Sec. XIX.
S Ervices of Submiflion are Homage
and Fealty, which are certaine ce-
remonies ufed among tenants, where-
by they fubmit themfelves unto their
Lords, and binde themfelves by folcmn
cath , or by faithfull promife , from
that day forward to become the
Lords men for life ^ for member , for
terrene honour , or ad minimum y to-
owe unto him faith , for the Lands
Which they hold of him, Both thefe
Cere-
Crew
we
iodbo
low
am ko
imnd
the!
id.
m
injfei
ioloii
It™
noil
nan! '
nwnf
iii Ceremonies are ufcd at the firften-
Mt trance or admittance of any Tenant*
*14 and both tend to one end , viz. to in-
h force every Tenant to acknowledge
*i andconfcfle himfclfe Tenant unto his
immediate Lord : Yet they differ in
« many material! points.
Sec. XX.
illfr. . .
to TN Reyard of their feverall manner
J of performance: For, in doing fcal-
forts ty the Tenant taketh a folemn oath; in
doing homage onlygiveth hisfaith-
fullpromUe: and thence it is, that fe-
alty is accounted the more facred fer-
yice , though homage be the more
humble fervicc, and performed with
wagefarre greater reverence than fealty in
meet many refpe&s : For in doing homage,
«\w the Tenant kneeleth ; in doing fealty
iOtleihe ftandech: in doing homage, the Te-
/olownant muftremaine uncovered; in do-
, framing fealcy , he may remaine covered •
ie thein doing homage, the Lord kifleth his
i, foiTenantjin doing fealty, he kifle.h him
«j, ttrtot. Laltly,in doing homage, the Te-
Laninant promifech to become the Lords
h thee man for life, for member, and terrene
Cere-s b 2 honour;
(i<5)
honor ; in doing fealty he only 'five*
wth to become the Lords faithful!
Tenant: the reafbn of this difference
I learn tobe this; becaufe homage e-
(pecully eoncerneth fervice in wane,
and properly appertained unto
Knights fervice;but fealty chiefly con-
cerned fervice at home, and properly
to Socage tenure ; and
though now ’tis held , that a Tenant
by Socage may doe homage, and that
homage tx fi raaketh Socage Tenure,
and not Knights fervicejyet originally
homage was invented for Tenant* by
Knights fervke , and fuch as were
bound by their tenure to attend their
Lords in the warres; but fealty waj
primarily deviled for Tenants in So-
cage, and fuch as were bound by their
tenure to manure the Lords ground,
and carefully to difcharge all rurall
affaires : And this agreed with the
ancien c Lawes in Scotland • for among
them none were accounted Freehold-
ers but only Tenants by Knights fer-
vice j and confequently , none but
they could doe homage : and there-
fore marvell not why in doing
Homage > the Tenant proraifeth
Lords
j.
prior
aodth
iscap:
ttel
Keen
l. In
bunt)
to
iloids
■JT
fete
thattt
Cop!
tag.
neit
idjx<
is IE
re*
ROC
(17)
to become the Lords man for life , foi
member, for terrene honor , in doing
fealty he only fweareth to become the
Lords faithf ull Tenant.
^ 2. They differ in regard of the
B perfbns to w hom they are performed
I and that two wayes. 1 .In refpeft none
L, is capable of receiving homage, but
” the Lord in perfomBut theLords Ste-
ieiii Warc ^ or his Bayliffe is capable to
receive fealty in the Lords behalfe.
. ' 2. In refpeft that a Lords who hath
® but atieftatefor his life in his Seigni-
^ ory cannot receive homage, but fuch
* a Lord may receive fealty.
Vf 3 They differ in regard of the per-
I fens to whom they are performed, and
; that two waies. t. In refpeft that no
Copyholder is capable of doing ho-
? ® mage , but he is of doing fealty , wit-
toul neue common experience, a. In
■ ^ refpeft that aTenant for life or yeers,
nl is unable to doe homage, fortisa
* groun d in law , that none can doe ho-
"yiftage but Tenant in feefimple, or
™ s [ad minimum Tenant in tayle.
Jkala nd
rortty 5 •H-7*
The Juftices
of the Com:
mon Place,
i o H.tf.held,
that LeflTee for
yeers cannot
doe fealty.
PEni
Utenc
theCo
injo]r
witt
B UT Tenants for lifeoryeer*, j
are both able to doe fealty, accor- 1
ding to Littleton f rule, that fealties ate
incident to every tenure, except te-
nures in Franck-almoigne , and Te-
nants at will, contrary to iome erro-
nious opinions : they differ in regard
that homage can be but once done
unto one Lord by the lame Tenant; rT
and therefore ’cis agreed', that if Land [
dilcend unto me , which is holden of
J. S. by homage , and I doe unto him
homage, and after other Land di«
fcendeth unto me by another Ance*
ftor, which is holden of the fame Lord
by homage, I Hull not doe homage
againe, but fealty on!y,becaufe I can-
not twice become the Lords man; but
I ID jlf
m
lords?
tote
And t
vices.
Ac
the felfe-fame Tenant may feverall I /
Iwel/f.
times doe fealty unto the felf-fanie
Lord ; and therefore if a Copyholder
lurrendreth White-acre unto me , for. IT’ !
his White-acre I fhould doe fealty
unto the Lord. If after another far-
rendreth unto me Black-acre , I fljall
doe fealty likewife unto the fame
Lord.
Will
I will-
d9)
Lord. And thus much for fervlces of
Submiflion.
J Sec. XXII
I "I
1 QErvices of profits are of two forts*
Jj Otending to the publique profit of
^ the Common wealejas when the Lord
' in/oyncth his Tenant to amend high
waieSj torepaire decayed bridges, or
** fimilia . 2 . Tending to the private
^'profit of the Lordjas where the Tenant
,js injoyned tojbe the Lords Carver*
™ButIer,or Brewer, or is tied to pail the
Xords Parks, to tyle the Lords houfes,
\ V thatch the Lords Barns,and fimilia.
^And thus much for corporall fer-
K vices-
KHU|
ela
Annuall fervices are in number in-
jSntte, in nature all one , for they all
*’ .end to the increafe of the Lords Cof-
®’ r ers,and are referved in' their dutiessas
".fivellfor Copyhold land , as freehold
and ; though in the Saxons time, and
M / long after the Conqudl , t!iey were
1 ^lever, or feldoifie referved for Copy-
“| r poId land, but only for freehold land.
* t will not enumerate
l will not emimerate many par
“Ws of annual! fervices , for that
Lor!
larticu-
twere
C a
( 20 )
its endlefle , as numbring thefands of
the Sea ; only this I fay, that thofe an-
nual! fervices which here come with-
in the compafle of my meaning , con-
fiftin Render, noneinFeafance, for
thofe annnall fervices* as well as
accidental! fervices , which confift in
Feafance,I comprehend under corpo-
rall fervices ; thus leaving both cor-
po rail fervices and annual! , I bend
my courfe towards accidentall fervi-
ces , which before I begin to parti-
cularize, obfervethefe two things by
the way:
i That accidentall fervicesjdiffer
from corporall and annuall fervices in
this; that mod accidentall fervices are
incident to the fee, 8 c are due without
fpeciall refer vation of the Lord ; but
mod corporall fervices , and all annu-
all fervices are due upon fpeciall re-
fervation , and are not incident unto
the Fee.
2 That fervice is taken in a double
fenfe, in flriShori Jen/it t and in latitti
ftnfn ; In Jlri&im Jtnfu , and in that
fenfe the Feudijls define t Jervitiumfore
mumti obftquii client ekr is , &c. that
duty which the Tenant oweth unto
ILa
arpc
to
j»,i
to
leifo
fenfe
Tthic
mi
on;
of i
tod
The
tli
fc
i
5
3
Not
par,
(31 )
his Lord , either in performing fome
0 corporall fun&ion, or in difcharging
fy fome annuall payment* In latiori fin-
'' /«, and to it fignifieth any duty what-
foever accruing unto the Lord , by
'V reafon of his Seigniorie; and in this
fonfe, accidental! (er vices following
1 which prima facie , may foeni better to
f; ranke under the title of jufdiftions,
' or rather under the name of the fruits
1 , 1 of a Manor}imy very fitly be reduced
£l to thefo kinde of fervices.
>j®
The fervices I ayme at, and
Me which I mean to treat of par-
iktsi ticularly in this place are thele
icest following ;
A
'll;- i Wardjhips. 4 Amerciaments.
Hate 2 Herriots. <> Forfeitures.
CUil 3 Reliefes. 6 Efcbeates.
Now touching every one of thele a-
, 1 part, and firft with Wardfiips.
Sbc. XXIII.
9k*
TT J Arfhipp. efi cuflodia heredie in -
V V fraatatem exifienttt. Polidore
C 3 Virfft
( 23 )
Virgil faith, that this was novi veffiga-
Us genus excogitatum, tobelpe. Hen. 3 .
being opprefled with jmuch poverty,
by teafoti he received the Kingdoms
greatly wafted by wanes olhisjAnce-
ftors, and therefore needing extraor-
dinary helpe to uphold his eftate, the
u/e qf Wardlhips was let abroach.
But the 33. Chapter of the grand Cu-
ftoruary maketh mention of this to
have been ufed among the Normmi ,
immediatly. after theereftion of Ma-
nors , and that theuleofWardlhips
Tktti lib. j.f.j, vvas on f aot before f/.the thirds time,
asappeareth manifcftly by Glam ill,
who writeth very largely in many
places in his Book 5 and lived in H. the
feconds time. Guardians are either
termed Cxflodes , or Cur.itorer.Cujh-
des k Lige, Cur at ores ab bomine , as Flets
fpeaketh. The Civillians make three
lores of Gnardims ,i.Tut*r tefiamenta •
rim. 2 -b. lttor a Protore datus. %.Tutot
tegitimui. This in every point agreed
with our Common Law , Co we have
'1'tttorem t eji ament aritem,- -viz. where
a man poflefted of certain goods and
chattels de&ileth thefe unto his childe
and wirhalf, comtnitteth the care of
his
p his childes body, and difpofition of h*s
'•3 fubflance unto feme friend , this com-
mitee is Tutor tejhttntntariw , unto
whom belongeth the care and cufto-
N dy of the childes body, and the difpo-
t® fition of his fubflance , untill he ac-
«,» complilh the full age of fourteen yeers
ror and then immediatly he fliall be out of
dO Ward for his body, but his goods
thin may be kept longer , for as for them
m they (hall remain in the truftees hands
oftt (o many yeers as the Teftator appoin-
* ted by his laft Will and Teflamentr
iii 1 ; for though it be not in the Fathers
power to reftrain the liberty of his
m childes body longer then to the age of
H.tb 1 4. yet the difpofing of his good s he
eitte may commit to any , for as long time
:C»f as himfelfe (hall thinke expedient : So
s « bythe Stat.32. and 34H/8. Ifaman
ethr be feifed of Socage Lands, not holden
m oftheKing in Capite, he may by his
ih laft Will arid Teftament commit ths
; ,'c ordering of Theoglands , to w bat
ichai friend foever, for as many years as
vbs fliall feemmoft convenient , and that
idsJi ftienAisTutorTeJijMentariw: otbcr-
wi(e it is of lands holden by Kinghts
caiti (ervice ; for- it is not in any mans
t- C 4 P 0WCr
( 24 )
Power by hislaft Will andTeftament,
to deprive the Lord of that duty
which, dejure, belongeth to him, and
therefore if a Copyholder dieth , his
Heire under under the age of fourteen
(in regard that this priviledge of ap-
pointing the heires a Guardian for
their Copyholde land) untill be ac.
complilh the age of fourteen, dejure,
appertaineth unto the Lord. Itfeem-
eth that the Father cannot prejudice
the Lord in this kinde, by appointing
him another Guardian by his laft
Will and Tefiament; hxc de Tut ore
tefiamentario. 2. We have Tutorem a
Vre'ore datum , viz. where a man devi-
feth goods unto his childe,&: appoin-
techhim not a Guardian, then it is
in the Ordinaries hand to commit the
ordering of the Infants goods unto
(onie trufty friend , unto the age of
fourteen ; at what time the Infant him-
felt' may choofe a Guardian : for it is
a rule in the Civijl Law , Invito curator
non ditur , and this Commitee eft Tu-
tor a Protore datui. Thele Guardians
termed amongft the Civilians , Tuto-
res d Protore dati, are commonly cal-
led Guardians, pur nurture $ and thus
in
r«
an
k)t
ton
m
and
Ci
ns
k
pai
P
<k
Ctii
Gu;
Tei
h
un
in;
\\
ol
be
tk
k
tin
is'
Ik
cb
( 2 5 )
ail, in words we fomewhat differ , in mat-
«jf ter nothing. 3. We have Tutorem ’
M Hgitmum,viz.viherc the intereft doth '
., l i it jure belong unto any , without the ,
we nomination of a private perfon, or the
ofif appointment of any publique Officer:
mil and this Guardian is two fold , either
lift Utigimus jure nature , or ligitimwjure
n- Communi : Ligitimus jure Nature ~
:fe as where the Father or the Mother
jiiii hath the W ardffiip of their heircs ap-
is: parent, be it heire male or fe male : Li-
ft k gitimw jure Communi ; and that Guar-
r ttn dian is twofold , either Guardian in
'mi Chivalry, or Guardian in Soccage ;
devi Guardian in Chivalry is where any
p Tenant feized of land , holden by
11 iti Knights fervice dieth , his heire male )
nitib under the age of fourteen , and un-
s us married ; then ffiall the Lord have the
a «ci Ward, both of the lands , and body
utto of this heire male , unto the age of 2 1 .
forii; becaule the law intendeth, that before
that age, the heire is unable to per-
0 t form Knights (ervice,accordingto the
udia tenure ; but the heire female ffiall be
fut in Ward , no longer than to the age of
U fixteen, becaufe the heire female,
d though ffie her felf be unable to per*
form
(*<9
forinKnights fervice, yet at fixteen,
(he is able to take a husband, who in
herbehalfe may doe Knights fervice •
and therefore at thofe years (he (hall
be out of W ard ; nay , (ometimes lhe
(hall be out of Ward before fixteen*
and that is either, where (he is married
at the death of her anceftor , or where
(he is any whit above fourteen, when
her anceftor dyeth ; in neither of thefe
Cafes (hall (he be in Ward at all ; (or
though the St at. oiW. i. cap, 1 1. gi-
veth unto the Lord two years next cn-
fuing the fourteenth , yet that is to be
underftood , where (he is under the
age of fourteen, and unmarried at her
Anceftors death , and not otherwife.
This for Guardian in Chivalry.
Guardian in Socrage, is, where any
one feized ofSoccage lands dyeth, his
heire under the age of fourteen , then
the next friend unto the heire , to
whom the inheritance cannot difi
cend, (hall have the Ward of the
hcires body and of h is land , untill the
age of fourteen , as if the land difeen-
deth unto the heire by the fathers fide*
then the mo.her , or next cofin of the
mothers fide (hall have the Wardjand
if
( 37 )
9 if the Land difcendeth to the heire by
sir, the mothers fide, then the father, or
ft, next cofin on the fathers fide fhall
U have the Ward. To conclude,obfcrve
all! this difference betweene Guardian in
to Chivalry, and Guardian in Soccage,
it® that the one recei vet h the commodi-
ties of the Land to his owne ufe,
w(r without giving any account- the o-
: tlri ther onely to the ufe of the heire , to
; fc whom he fhall be accountable when-
i, j, foever it fhall,'pleafe the heire to call
la, him to account, after the ageoffour-
ok teene. Thus much concerning Ward-
tfr, fhips ; a word concerning Her-
thtf riots,
wife.
% Sec. XXIV.
lany
tte T T Erriot , or Harriot commeth of
. I0 ..LX the Latine word Herm 3 Domi-
J jjf km , becaufe it is a duty appropriated
ffa to the Lord ; or it is derived from the
Hjjj Saxan word, ben exercitw, becaufe in
(■ ceJ . the Saxms time, when the name of
Ijj, Herriot was firft knowne , Herriot
fignifkd nothing elfe but a tribute
J given tothe Lord for his better pre-
'■{ * P ara '
Vidt Lamb, in
his explication
of Saxons
words, tit.
Harriot,
Brit, cap 69,
.(28)
paration towards warre, as a horfe
trapped, or a fpeare, or armour, or a
(word , or fbme fuch like Military
weapon ; and' therefore in this (enfe
importing a thing appertaining to
the warre , and being due unto the
Lord, by reafon of this fervice, which
Tenants ow unto theirLords in many
warlike imployments , it may very
fitly be derived from hence : This
their Herriot among the Saxtnt lit-
tle differed from our Reliefe at this
day , howfoever now they differ ex
diametro : But let us examine the na-
ture of our Herriots at this day, and
not fearch into the nature of their
Herriots in thofe dayes; for that
were to examine the nature of Re-
liefes , not Herriots. Britton thus
fpeaketh ; A Herriot is a Render,
made at the death of a Tenant to his
Lord, of the bell beall found in the
poire if on fof the Tenant deceafed ,
oroffbnie other, according to the or-
dinance and afligncment of the party
deceafed to the life of the Lord, which
touchetli not the Land at all , nor the
heire, nor his inheritance, neither
hath anv companion to a Reliefe, for
it
/pr
f*
few
cffe
/jit
fn
titi
it!
ilt
m
£
fn.
1
otlt
Ser
vet
JK
eft
Hi
i
fc
fc
iL
for
ofi
ml
w
Hi
i
Eli
ikii
fa.
ndff,
( 29 )
it proceedeth rather of grac£ and
good will, than of right, and rather
from villaines, than freemen : to this
effe& fpeaketh Flcta , Hemottum eft
quadam pr.fftjtia, ubi teneus , liber vel
ftmu in mrte ftta dominum fmm refti- Fleta lib.4.
cit de meliori averio fuo vel de fecuvdo ca P- 1 %-
meliori , qu* quidem praftatio magis /«-
it de gratia quam dejure,& nullum habet
eomparationem ad relevium eo quod here -
di non continget quia jatium anteceft
forte.
This our Herriot is twofold;Her ri-
ot fervice, Herriot Cuftome. Herriot
Service, is that Herriot which is ne- .
ver due, without fpeciall refervation,
and is feldome relerved upon any lefle
eftate , than an eftate of inheritance.
Herriot Cuftome, is that Herriot
which is never due upon fpeciall re-
fervation, but is challenged upon
fome particular Cuftome, and is ufu-
allypayd upon an eftate for life, and
foryeeres, as well as upon an eftate
of inheritance. Touching the origi-
nall of thefe Herriots,doubtlefle they
are not of thajt antiquity which the
name doth promife,for though among
the Saxons, the name of Herriot was
knovvne,
( 3 °)
knowne,yet the nature of both thele,
Herriot Services, and Herriot Cu-
ftome, was utterly unknowne, untill
the comming of the Normans • who
immediately upon the Conqueft,
changed the name of the Saxons Her-
riot, and termed it by the name of a
Reliefe , leaving notwithftanding
iome difference betwixt them , for
where the Saxons Herriot , confided
ufaally in the payment of fome mili-
tary weapon ; our Reliefe in thole
daies confifted wholly in the payment
ofacerrainefumme of money, and
prelently after, the Normans had thus
wholly altered the name, and lome-
what altered the nature of the Saxons
Herriot, then upon the parcelling of
their lands unro inferior Tenants,
they invented this new kinde of ler-
vice unknowne amongft the Saxons ,
and termed ic by the name of Herriot
Service : afterward, upon the infran-
chilcment and manumillion of certain
villaines; thefe Herriot Cuftomes
were given to the Lords , as a conti-
nuall future g ratulation : lo that ori-
ginally, as 'Britton , and Fkta well
note , they were granted meerely, ex
gra-
, , gratia, but now time hath effe&ed h»
^r" that they are challenged, ex dtbito'
■ Thus much of Harriots; a word of
i* P- eliefe *
ap • '
u He Sec. XXV.
KOf
ft 13 Elide is a certaine fumme of Gtam/J ib. 7 .
J XV money which every Freehol- u{ . 9 .
der payeth unto his Lord, being at
V full age at the death of his Anchor,
vt hich in effeft foundeth all one, with
^ theft words of Glanvil^ Hzredcs majo*
! f rss fi*tim pofi deceffum anteccjjbrum fit*
r ■; erHm pojfmt/e ttnere in bar edit ate fitaji -
^ cet Domini pojfwtfeodem funm cum kc-
, M rede in manvufitai capere : it a tamen mo-
ID ^ derate id fieri debet , ne aliquant dijfeifi -
hecedibutf actant jjitnt enimfiot*
> CI wdet fiopuf fuerit 5 violently Domino-
! m ru* 1 refifiere, du m tamen parati fnnt Re~
1OT a n a ntro ji rv i t i a i n def acere •
^ with this agreeth the definition of Hotoman Com .
iUjn jj ot oman^Reliviitnufi honorarium quod verba
. wgttur quafi marte ufuali altius zel alio
1 * quo cafu fiodii ctciderit quod jam a no-
wc vofebltvaittr, Tliis reliefe by the an-
1,: ' cient
r
Zratt'lib.i.
t&f. 86 .
(3*)!
dent Civill Law was termed Introt-
tin- and Vincentius termeth it Praflate-
tionemfcajolutionemfj&am pro cenfir-
mationtfeu renovatione pojfejjionii , and
that very aptly : for indeed Reliefe is
the key, which opens the gate to give
the heire free paflage to the poflellion
of his inheritance. Bratton giveth
this reafon why it is called a Reliefe,
Quiz bee reditu qua jacttis fttit per an-
teeejjorit decejfttm , Releviatur in manta
btredif& propter fattnm relevationem
faciend.erit ab hxrede quxdam prxjlatio
figmmftit. Re- * nia gi net ^ that it taketh his name, a
qu£ dicitur Reltvium. Skene fondly
liefe,
■fll >
relev undo , in another fence ; for faith
he, Reliefe is given by the Tenant or
ValTall, being ofperfett age, after the
expiring of the Wardfhip, to the
Lord, of whom he held his Land by
Knights fervice, it is by Ward and
Reliefe, and by payment thereof he
relieves, and as it were , raifeth up a-
gain his lands after they were fallen
downe into his fuperiors hands , by
reafon of Wardfhip. But thefe words
of Glanvil will ferveto convince him
GlanvMb. 9. of error 5 Tandem vero eodem ad &ta-
tcmpervcniente y & 1 pitta ei hxnditatii
refli-
cap.9
( 33 )
ni. rtftitutionc quietut mt a Reliviaratiotfi
j% cujlodU : This Reliefe is twofold,
wfy Firft, Reliefe Service. Second, Re-
«,t liefe Cuftome : Reliefe Service, is
ttj that which is paid upon the death of
:top any Free-bolder. Reliefe Cuftome,
olid is that which is paid upon the death,
in i;’ change, or alienation of any Free-
il hold, according to the Cuftome of the
place, in many places halfea yeeres
RH profit, in many places a whole yeeres
hi- profit, and therefore where Bratton
/r<f; faith , iddat Domino Relcvmm qui
• hi feccedit jure b&editatis , non autem it
k- i f* ncquirit ; that is to be taken with
Bifc'this caution , nifi illnd etiom confuetudi-
hr ne > ? r *ft* re debet qui ac quint. Thefe
,1,: Reliefesare paid, as well for lands
id [jholden in Soccage, as lands holden by
^Knights fervice: for lands holden in
1(1 ..Soccage in this manner ; If a Tenant
^•(in Soccage die, his heire above the age
of fourteene , then (hall the heire
. ' double the Rent that his Anccftors
j. [was wont to pay to the Lord, as if
„’fie Tenant holdeth ofhis Lord by fe-
efc alty,ancl ® ve fljilllngs % then Ihall the
j^heire double the R ent , and (h ill pay
liui ten firilhngSjtiiz. five ftiillings in the
name of a Reliefe, over and above the
D five
( 34 ) ^
five (hillings, which he payeth for his
Rent. For lands holden by Knights
fervice in this manner; if a Tenant by
Knights fervice dieth,his heire of full
21. if he holdetb by an intire Knights
Fee, he payeth five pound, if by halfe
a Knights Fee , then he payeth fifty
[hillings , if by a quarter of a Knights
Fee, he payeth twenty five (hillings,
and (o proportionably, who Co hoi-
dethmore, payeth more, and who
holdeth leffc, payeth leffe; yet for the
fuller apprehenfion of ehe quantity
of a Relxefe ; let us examine what
a Knights Fee fignifietb. A Knights
Fee, is fo much land as in ancient time
was accounted a fufficient living for a
Knight, but whether this was rated
according to the quantitie, or accor*
ding to the value , Caujidici cert ant,
& adbuc fxbjudice lie eft. Some hold
accordingto the quantity, and that
according to the feverall computati-
ons uled in feverall places. A Knights
Fee was either more or lefle ; as in the
Dutchieof Lane after : a Knights Fee
contained fourebydesofland, every
hyde four carnes of land , every came
foureyard lands, every yard thirty
acres; and every Knights Fee 1920.
acres.
it!' Act
gins, aft
jut accord
tfoifW
land, eftry
wrfjardli
««i! If
andt
"""pm,
it acres. According to other computa-
tions , a Knights Fee contained, 680.
But according to mod computations,
a Knights Fee contained five hides of
, t -,4 ,and > ever y hide fcure yard lands , e-
, iiffibepnahi vcr 7 y ard ^ and 2 4 * acres, according to
|ifiwto[ifij which corporation, a Knights; Fee
bajkii!: containcd 4 So - acres : fo that accor-
MMofod ,n S 10 revcra11 computations , a
, Fee was raore or lefle. Others
; ^°^ d 3 that a Knights Fee was meafii-
red according to the quality, not ac-
cording to the quantity; according to
value, not according to the
J MiU
contenttand among d the(e,fome hold
ix\\vu%v V •- — - f «««•*«
ktewnf an ™ m made a Knights Fee; and
tit a if :F,ereFore 3 Camden faith , that , Sub
JL ,j; xanums terrarttm redditibtu collfca.
py* : mt i and out of Matthew Paris , he
SffinAt*. that anno, 125 6 . E xiudi&um
'7ir. k e &' Hm pW'PumqHe eft&atclamatu ter
u ■A r -' ofl/m ngnnmut qui baberet \ 6 .libratM
■ ; jKnig >m-«e fffJkpradiU. armis redimitus tiroci -
y M dm*retur y ut Anglia, jiatt Italia mi-
■» m ]y ia nboraretttr , & qui mUent , vtlqtti
spit [ wnpojfuntbonvrtm ft attu milk arts jk-
,ksFee,f ' " D 2 ftmrc
( 36 )
fiture ptcunia feredimerent .others hold
that cenftis equtjlris , was forty pound
Smith, dt rep. KV ennue in Freehold land: and of this
1 > 3 i > i J« opinion is Sir Thomas Smith : otherj
held, that cenf ut equeftris, was twenty
pound revennue ; and this opinion is
confirmed by many authorities , and
reafons cited in Anth. Lowes Cafe, by
an ancient Treatife, de me do tetunii
par li amentum tempore Regis Edward
fil'd Ethtldred , where it appeareth,
quod coniftattts conjlabatex vigintifeo-
its unites militis quolibet feodo compute
to ad zigirji libratas. Baronin confab at ,
ex cj. itt feodif ac tertia parte unittt feodi
militis ftcundum computationem pn .
diet annum feodum militis confiabattx
ttrrit advalenthm 20. //.and therefore
where the Statute of Ed. 2.demiliti-
bue\ providech that a Knights living
(hall be meafured by the value ot
twenty pound per annum $ this is but
an affirmance of the Common law. 2.
Fitch, nat. Brt- This is ftrengthened by the wordsof
v'mmfo. 6 %. the S ta t.of W. 1 .cap. and by Fhd.this
leemeth lomething pregnant , for in
both thefe places; Soccage land to the
value of 20.pound/wr <*«»«, are put in
equipage with a Knights Fee. 3. In a
Writ
TM
tone!
Fee,ii
ȣ
Qlt',1
accord
acres ^
to the
out
than;
®U
phees^
( 37 )
i\\o\ Writ of mefiie, brought per KamU
^ phum de Normanvile petentem verfUr
Luciam de Kyme tenmttm T, 3, E, 1.
appeareth that twelve carnes of Land
M ® made a Knights Fee, every carnebe-
sopi ingin ancient time of the value of five
nobles per annum * according to
»aCs which account, a Knights Fee a-
15 mounted to twenty pound per annum.
Thcle are the feverall opinions,
itip touching the quantity of a Knights
’txif F ee,imbrace or theft, which fhall ftem
moil conlonant to reafbn, For my
'imp own parr , I think that in the ancient
w' : - time , aKnightsFee, was mcafiired
l *>| according to the number of the
acres ; but in theft dayes , according
cdfe to the value of the land ; the reafbn
'J* of this alteration isjthat though in an-
ights “ cient time , as well as in theft dayes,
xtA 1 feme lands were farre more fruitfull
•,tou thanj others 5 yet the value of eve-
Dfflils ry quantity of land was certainly ra«
then, ted, according to the Cuftome of the
yfitt places,&never upon any occafion was
utt,fe the land increafedor decreaftd; and
IwO therefore were they to examine whe-
jKjt ther any man had a Efficient living
for a Knight , they would look no fur-
I D 3 ther
( 38 )
ili« than to the quantity of his land ;
for by the quantity, they couldpre-
fently judge the value; but now the
value is not certainly rated in any
place , but increafeth and decreafeth
upon every occafion ; and therefore
reafon requireth , that in thefe day es a
Knghts Fee (hould be meafured ac-
cording to the value, not according to
the quantity of the Land , for by rea-
ion of the different value of the land,
one man may be better able to main-
taine the dignity of a Knight, with
two hundred acres in fome place, and
of fome land , than another with four*
hundred acres of other land. But
howfbever it is, whether aKnights Fee
berated according to the value, or
according to the quantity let it here
reft.
Now give me leave to examine at
what time, & by what law it wa* firft
provided, that for every Knights Fee
the fourth part ofa Knights revennne
fhould be paid in the name of Reliefe,
•viz.^.li. For every Barons Fee, the
fourth part of a Barons revennne, viz.
one hundred marks; For every Earles
Fee, the fourth part of an Earles Re-
''ennue,
ifflH
kfo
ani
Air
This
lam
ta
him
tot!
m
nit
fact
mk
iritfei
hliti
igiti
•m
Con
ofn
Tc
mis
mb
wrel
:W5
lint
lead
thfc
like la
bo
hi, a
face,n
t&fk
i l
ike,
'« iib
SLimiK
itwi
lights;
re®
ifRelf
Fee, 1
rase,*
y&i
itM
( 39 )
venue, t»iz. one hundred pound ; ffire-
Iy Reliefes were paid in this manner,
before the Statute of Magna Cbarta ,
and that is fomwhat pregnant by this,
that by the very words of that Statute .
This Reliefe is termed Antiquum Re -
levium • and by Glanvil, who writ
before the making of this Statute,this
is (bmewhat manifeft jfor he (peaketh Glanvtl, lib.*
to this effeft , Dicitur ratitaabilerele - cap. 9.
z/jfcm 1 alien] wj uxta confitetudinetnreg •
»i dejtado unitti unlit U centumfolidos dt
Soccagioher'o quantum valet , ««/*# i#/-
»# Soccagii per annum dt Baronia verb
nihil certum jlatutum efi quiajuxta vo~
Iuntatem& mifericordiam Domini Re-
git folent Baronia capital, dereleviit juh
Domino Regi fatisfacere : from whence
I gather, that Statute of Magna Cbar-
ta, was in part an affirmance of the
Common law, in part an inftitution
ofanewLaw.
Touching Reliefe paid by Knights,
it was but an affirmance of the Com-
mon Law , becaufe they were certain
before the Statute. Touching Re-
liefes paid by Barons , it was an infti-
tution of a new law, becaufe they
were before uncertaine •, and the rea-
D 4 fons
:»
< J
ions why Dukes and Vicounts are not
mentioned ii^this Statute , as well as
Earles , Barons , and Knights, is this,
becaufe'when that Statute was made,
there was neither Dnke, Marquefle or
Vicount in England. The firft Duke
that ever was in England fichence the
Conqueft,was the BlackPrince,eldcft
Ibnne to Ed, she third. The firft Mar-
quefle that ever was in England, was
Robert Earle of Oxford 3 created by R,
2. And the firft Vicount that ever was
in England , Domnin de Bello monte,
created by H. 6 .
But though at the making of this
Statute , thele dignities were un-
known , yet they are comprehended
under the equity of the Statute , and
according to their ieverall dignities
fliall pay Reliefe unto the King , a
Duke two hundred li. a Marquefle
two hundred marks , and fo ratably
and proportionably. But to conclude
let us compare Herriots and Relietes
together , and obferve in what they
differ.
i They differ in this , that an Her-
riot lyeth in Prender, and a Reliefe in
Render. 2. In this, that a Hcrriot is
paid
(40
Bt ®i paid in the name of a Tenant decea-
^ fed; but aReliefe in the name of an
% heire, who is become Tenant. 3. In
this , that Harriots are paid by Copy-
H;;' holders, as well as Freeholders ; but
Reliefe by Freeholders only. 4. In
this, that Herriots are ever due upon
a fpeciall refervation , or upon fome
! ® particular Cuftome 5 but Reliefes are
W, s incident to the Fee, and are due with-
atflHf out refervation or Cuftome, contrary
rerat to the opinion of Vincmtinvu , who
It m holdeth a Reliefe cxtrinfccamfore prt-
flationem &non inejft feodo. jThus much
ofi touching Reliefes : a word touching
«e» Amerciaments.
kW
«,t Sec. XXVI.
digit
King, A Merciarnent is a Pecuniarie pu-
Jarijit «/*- nifhment for any offence com*
0 tatii mitted againft the Lord of any Manor,
icooch or (as fbme more at large define it ) it
1 Rid is a certain fumme of money impofed
vltaii u P° n the Tenant by the Steward by
oath, and prefen tment of the homage*
tipft f° r the breach of any by-law made, ei-
elict ther for the profit of the whole king-
:rrioi dome , or for the bene fit of the little
pi Com*
( 4 3 )
Commonwealth among themfelvcs,
or for default of doing fait , or for
other mildemeanors , punifhable by
the lame Court , Infinite in number
and quality ; and this word Amerci-
ament taketh his name from being in
the Lords mercy, to be punifhed more
orhtffeatbis willand pleafure , and
it differeth from a Fine in divers
refpefts.
i In that whofoever is fined may
lawfully be imprifoned , but whofoe-
ver is amercied 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 Courts of Record. 3.
That Amerciaments are incident unto
every Manor whatfover ; but Fines
are incident unto fonie few Manors
only : the reafon of this difference is
partly grounded upon the former
difference ; for fithence Amercia-
ments are incident unto every Court
Baron, and Court Barons are incident
unto every Manor : Stquitur ex ctnje-
qnente , that unto every Manor amer-
ciaments are incident, but ex adverfo.
Fines
( 43 ) ^
MN| Fines being incident unto Court leets
lit, i' only, and thofe Court leets being In
lilluli Ibme few Manors only, not in every
in it Manor ex prefly [equitur^ that Fines
rdAffi are not incident unto every Manor >
mini but unto fonte few Mannors onely:
iWt 4. In this, that Amerciaments are
Art, afferable Per pares , per /acr amentum
in 6 probtmm & legalium bomimm device-
neto , qui ficundunt modum delitti ma-
fioats j ort id rninori Amerciammta delin~
mA: mulUare pojftmt : but F ines are
nhis,: never afferable in this kinde; for look
ut n what Fine loever the Court impofetb
upon the delinquent , that bindeth
n\i% fufficently, without further afferance.
,0# Give me but leave to ask two queft i-
LeC oii ons » when had this afferance his firft
jjjuu conception or creation? 2. How may
jjuifj Amerciament in Court leets be dif
jU,, cerned and diftinguilhed from Fines
^ impofed in the lame Court , fince they
are both pecuniary punifljmentsfor
offences commited? Touching the
r „^, firft queftion , I think this law of affe-
jjjfjjr ranee was before the < Statute of Mag- Glanv-lib. t.
txet n *Cbarta- y for Glanvile thus Ipeaketh up * 1 -
r jug of it, Eft autem miftricordia domini Re-
Uvit) r l H0 *1*™ t er j^amentum legalium
Cm bminum
( 44 )
homptm de viceneto catenas merciatr-
dw eft ne diquid de fan honor ahili emit-
tun. amt tat $ and therefore by this
appeareth, that this Stas. of Magna
Chart a , was but an affirmance of the
Common law in this point of affe*
ranee. Touching the fecond quefti-
on , know that ’tis notin the power
of the Court to impofe a Fine , or an
Amerciament at their eleftion for
any offence committed , but ftill the
quality of thepunilhroent muff necef,
farily fuit with the quality of the
offence , from the feverall natures of
offences committed, arife the feverall
names of puniflimetsinfli&ed.The of-
fences in relpcft of the placej arei two
fold,and in refpedf of the perfbns]two
fold. i. In refpeft of theplace,offences
comited, extra cttria y oi which the Ste-
ward by no co mon poflibility can have
cognizance without the prefentment
of the homage , and therefore the po-
wer of prefenting them, and impel-
ling punishments for them,belongeth
unto the Jurors of the Lect , and not
unto the Steward; andthefepunifh*
ments thus impofcd are termed Amer-
ciaments. 2. Offences committed
in
iC
tk
hel
the
feu
m
Mr
Tht
at
lor
fer
2 .
thef
roe
aSe
the
ft
ten
mi
or .
Uj'i
iff!
Mol
«b
( 45 )
wi Curia , of which the Steward caa
fee take fufficlent notice , without the
; hjli helping hand of the homage, and
therefore the punifliments of theft of-
nceofi fences belong unto the Steward, not
tofii unto the Jurors; and tbeie puniffi-
ndqtti ments thus impofed are termed Fines,
he pot Thus in refpea of the place , offences
it, m are twojfold. In refpeft of the per.
iioni fon,they are likewife two fold: tOf-
Dtli fences committed by private perfons
vim 2. Offences committed by publike
</o( i Officers, and Minifters of the Court,
tm in theadminiftration of their office.
M Punifliments impofed for offences of
Jkt the former rank are termed Amerci-
aelrn aments, of the latter Fines, the one
fousj t afferable per pares , the other not ; and
)0 fc the reafon why the Statute of Magna
tbtSt C barta in this point of a fferance , ex-
icattk tendeth not unto any offences com-
fag. raitted in Court by private Perfons,
[£[ u or publique Officers : neither unto
jpjiit whatlocver; yetth intent of the Sta-
generally extending unto all offences
tute
(40
tute makers was not to make the Ju-
rors Afferors in omnibus delicti nut-
Tteta l&bCdp. ftandii ,ftd in its t wtummodo puniendu
quorum certain po flint habere notitid ,
ititelligentiam , as Fleta fpeaketh: and
therefore fithence the Steward hath
more certain notice of offences com-
mitted in Curia by what perlbnsfbe.
ver then the Jurors have, and can bet-
ter judge and difcerne of the natures
and qualities of offences committed,
Extra Curiam by publike Officers,
than Jurors can ; therefore fiirely the
intent of this Statute, was to leave the
punifhment of thefe offences to the
aifcretion oftheSteward,andnottbe
afferance of the homage. Thus much
concerning Amerciaments: a word
tonceming Forfeitures.
Sec. XXVII.
F orfeiture commeth of the French
Word ForfaiH, ftelut , quia fcelerum
& deli&orum perpetratio eft forisfatfu-
rarum caufa & erigo, In our Language
ithgnifieth the effe&oftranfgreffing,
rather than the traafgrellion it felfe, I
mtean, it fignifieth th« penalty for
the
ii
felfc
bot
to!
U
I
fprii
\u
ao
tiie
ver
k
are
n
whid
any
Nlor
ilf
oft'
Ser
is a
not
cbm
ett
Wit
iists
T»
iketbn
Wflj
ihfm
■ Haiitii
akttki
wards
thenar?
lean i
atoh
inoti
an
it?*
ifetlti
•riifit)
the offence comroited,rather than the
a£kit lelfe, whereby the offence ic
felfe is perpetrated , and it extendeth
both unto lands and unto goods • un-
to lands, both Copyhold and Free-
hold.
Touching the cauies from whence
fpringeth the forfeiture of Copyhold
lands, I /hall have occafion to (peak
snore liberally in another place , ,and
therefore I will filently paflethem o-
ver, fpeaking lb me few words touch-
ing the cauies from whence Forfei-
tures of F reehold land arils. /
The cauies arc many } amongft the
which I have obferved. i. That if
any F reeholder alieneth his Land in
Mortmaine,he forfeiteth his freehold.
2.1f a Freeholder cealeth for the Ipace
of two whole years, to perfbrme Hich
Services , or to pay luch Rents , as he
is tied unto by his Tenure, and hath
not upon his land lufficient goods of
chattels to be diflrained , he forfeit-
eth his Freehold. 5, It any Free-
holder infringed! any condition
wheteuntoheis tied , he forfeiteth
his freehold. r .b. :
Touching the cauies from whence
grow
(+ 8 )
grow the forfeitures of goods , they
arelikewife in number many, and
from the feverall caufes of forfeiting
goods , arife feverall names of goods
forfeited, r. If a F don ftealeth goods,
and upon purfuit made 5 waiveth theft
goods, and Ieaveth them in any part of
the Manor, and be not attached upon
thefrefh fuit of the owner; then are
thefe goods forfeited to the Lord , and
are termed waives. 2. Ifanybeafls
are found wandring in any place, and
be proclaimed in three market towns
ad/oyning, and are not claimed by the
owner in a year and a day ; then are
the beafts forfeited to the Lord , who
hathfuch a liberty , and are termed
Eftrayes. 3. If any fuffer Shipwrack
upon the Seas, and through the vio-
lence of the Waves, goods are call
upon the Shore ; and being feized by
the Bayliffe , are not claimed within
a yeer and a day after the feifure; then
are thefe goods forfeited to the Lord
who hath that F ranchize , and are ter-
med Wrecks. 4. If one come to a
violent end, without the fault of any
reafbnable creature, then immediately
that thing which is the caufe of that
an-
num
m
Deod
Omi
i mil
veihh
or it
toco:
indi:
feme
of tie
fecond
sfc,*
lands
goods
ia di
fnuoe
less,
1 Be
mote
ton®
Tenant
x*,i
( 49 )
Bln j a untimely death , becommeth forfefc.
ted unto the Lord 4 and it is termed a
Deodand 3 as this old verfe teftifieth 5
'airab;
danda: as ifa Hor/e drikethhis kee-
per, and killeth him : or if a man dri-
^ethhisCart, and feekkig toredrefle
r ’ ! :niog over him , prefleth him to death;
,i it, falleth , and the Cart wheele run-
id* ' "■ " ' '
' X "or if one felling a cree,giveth warning
,f 1 ** uucicuuig * ncc,£ivetn warning
1 “'to commers by to look to themfelve9,
W‘‘ «nd notwitbdanding warning given,
™%me Body is flkine by the fall
“of the tree : the Horfe in the firft
Y the Cart and the Horfes in the
‘ econd cafe > and the Tree in the third
m are f or f c j te d to t he Lord as Deo-
lands: many other forts of forfeited
P t: 5©ods I might adde unto this , but I
Is lie yiU forbeare to enumerate any more
'lefei-0 this kinde; and to fpeak more
largely of thefe w hich I have already
itetfnumerated , for three fpeciall rea-
itfidfons.
ndas
1 Becauie they are duties accruing
coni: mto the Lord , not meerly from the
uMTenartts , nor folely by the aft of the
neMenants , but mod commonly from
6 cfslrafigers , and by the foie aft of ftran-
r 1 E gersy
(SO)
,‘arid therefore I confeffe are not
aptly ranked under the name of Ser-
vices. 2 .Becaufe a perfeft Manor
may well fublift, without their affi-
fiance , fince they adde nothing to
the.perfe&ion of the eflence of a Ma-
nor. 3 Becaufe they are not inci-
dent unto every Manor , but unto
ivjeb Manors only as can challenge
them , either by fpeciall prefcription,
or by Patent from the King ; for pri-
marily and originally thefe forfei-
tures of goods , belonged to the King
for thefe reafbns: efpecially , becaufe
what goods foever have no certain
owner known to challenge incereftii
them, as waives, efirayes, and wreck,
the property of fuch goods belong
unto the King, virtute pnrog tm t
and thus much Bratton intimated),
whenhefauhi, Sunt alia quaiam ft
in nulliw bonis ejfe clicuntur, ficut mtc •
cum ntarii,&c. & ali* res , qua P»-
minum non habent,ficut animalia vogstr
tia y &qitafunt Domini Regis profit
privtkgium marium : the reafons why
Deodands are forfeited to the King, is
this.
Deodands were originally invented
• for
feth
k ;
thefe
cord
lair
m
fed
thist
repr
card
will
we
ifiepa
nor l
of his
outd
addir
that!
put
wlr
Si
ttots
tbtiit
OlEttOl
die, i
isi
»;■
ifefti
iUttk
noil
nee of;
lie no
, bit
anti
preiciif
k.fc
tie it
'to ike!
f,k
oc®
:\m
taint
tods bi
pf
intitn.
ftlv
IfjJiW
*UP
'mb'
real®
m .
for the pacifying of Gods wrath , and
the appealing of Gods anger , and
theft things thns forfeited , were ac-
cording to the true intendment of the
Law to be (old, and mony diftributed
among the poor; and therefore upon
whom could the law have better con-
fered this benefit , or rather impoled
this charge then upon the King , who
reprefenteth Gods perfon upon the
earth , and whom the Law prefumeth
will deale more juftly,and truly,nay,
more liberally and bountifully with
the poore in this kinde , than any infe-
rior Lord, who peradventure out
of his uncbaritablenefle, peradventure
out of want, will be fo farre from
adding any thing to that which is due ,
that he will rather unjuftly (ubftraft
part , or unconftionably detaine the
whole.
Since therefore, thefe Forfeitures
of goods neither adde to the perfecti-
on of a Manor, neither are incident
unto every Manor , to (pendanyfur-
ther time about a (Iibjeft fo fuperflu-
ous would ill befeem this fmall Trea-
dle , wherein the (cope and end I aim
at , is this , only to prelent to your
E 2 view
. (50
Hew what things focver are necefla-
rily requifite to the eflence of every
Manor, and what Services foever are
incident unto every Manor : and thus
much concerning Forfeitures ; a word
concerning Efcheats.
Sec. XXVIII.
E Scheates commeth of the French
word,E chtarfxc'tdtrty and are ter-
med Excsdentha , which imports lands
fallen into the Lords band for want of
heire, generall or fpecialJ, to inherit
them s but before the Lord enter into
an Efcheate in this kinde, the homage
ought to prelent it , and being prelen-
ted proclamation ought to'be made to
give notice to the world , that if any
man come in, and juftly claime, he
fhall be received; the homage then
finding it clear, intitles the Lord, a* to
Lands E (cheated.
Eefides this ordinary fort of Ef-
cheate, there is another fort of Ef-
cheate, and that is, where any Free-
holder commitcth Felony, and is at-
tainted, the King (hall have animm
dum&vafium^ and then it commeth
unto
m
•jcb
ikes
“If
that
kt£
being
fbm
ocat
ptefn
as to
whic.
obuit
before
be tire
UK;
ginwi
I Fi
Ik
pora/,
mi.
Bribes
tafiServ
pnStof
A'fcL
( 53 )
ue$ onto the Lord as an Efcheate- thus
Dcta> n » uc h concerning the nature of Ser-
ufoo vices in generall , and there are lb ma-
in a °y particular Services in individue,
irei-u that I might infill in millions more,
1 but feare of incurring the cenfureof
being over tedious , reftraineth the
[, forwardnefle of my hand: yet fithence
occafion is (o favourable to me, I wifi
taP fe< h° ie ib much upon your patience,
ink as to lay open the leverall remedies
Ljj which the Law hath provided for the
0f ^obtaining of thole lever all Services
to mentioned , if perchance they
TOr be wrongfully deteifed by the Te-
itta nant 5 and for method <ake, I will be-
ffl?fR gin with corporall Services.
S Sec. XXIX.
any Freeholder refufeth to doe
. J. homage , or fealty, which are cor-
''porall Services oflubmiflion; or to
- . mend high wayes, repaire decayed
f ,„® r * d 8 es ) or fimtlij' which are corpo-
"JraU Services, tending to thepublique
^ profit of the Common weale, or to
3,!u difeharge the office of a Carver , a
■ ^'Butler, a Brewer, or fitch like t or to
* E 3 Paile
( 54 )
paile the Lords Park,to tile the Lords
Houles, or to thatch his Barns 5 or ft-
milt a $ which are corporall Services
tending to the private profit of the
Lord } If, I fay, any F reeholder refu*
feth to doe any of thefe Services, being
bound unto them by his Tenure; then
may the Lord lawfully diftreine his
cattle or his goods , and detein them
untill fatisfaftion be given, by perfor-
ming fuch Services as the Law doth
require, and the lame remedy which
the Law hath provided for Corporall
Services, is likewife provided for An-
nuall Services. J*jm
Sec. XXX.
tktf
1F1
,:d
not
ami
mi
notn
me
efts
the
afti
ofti
M
b tr
kft
Surel
tetfe
flhoi
O R if any Freeholder rcfuleth to
pay any annuall Rent , or to dif.
charge any annuall payment, accor-
ding to his Tenure ; then may the
Lord lawfully diftrein and in a Re-
plevin brought by the Tenant , may
avow the diftrelle , and julfifie the
taking. But no aftion of debt will
lye for thefe annuli Services , no more
than for Corporall Services ; for it
is a ground in Law , thac as long as
1 the
an i
rent
Set
Ai
is
fciit:
( 55 )
bill the the Rent covitinuetb of any eftate
ktri or Frankc tenement, no aftion ofdebt
tall i’ lyeth for the arrerages of the Rent,
Jtoi nor for any other Service whatfoeveri
fife and therefore if a Lea(e for life be
niis. made referving rent, the Leflor can-
Faait not maintain an aftion of debt for the
fin arrerages of this Rent, aslongasthe
i Jetfii eftate continueth, but prefently upori
nW the determination of the eftate art
KM aftion of debt lyeth for the arrerages
y )r of the Rent incurred before the time
[.(V,- of determination : But what,bath the
fed fa Law provided no other remedy for
thofe annuall Services, than a dirtfefle?
Surely no, before feifein, none, bot af-
ter feifein once gained; , ’til at hi $ ei&*
ftion, either to diftrein , or to bfiftg
'0 an Aflize : and thus niuch touching
1 nrt remedies for corporall and aanbatl
C Services.
icniw; ' , .. . 'i f n ;
indan . • Sec. XXXI.
snan:
if, A Ccidentall Services are gotten
'' ®, Xjl by many differing'means t.By
S,D feifure only , as the W ardfhip of the
:es ,’, heires body, together with theWaives,
E 4 Eftraies
<50
Eft rates, W recks Deodands,and fuch
like forfeitures of goods. 2. By the
entry onely , as the W ardfhip of the
heires land » together with lands for-
felted to the Lord , either upon the
breach of fome condition , or upon a-
Uenatfon in Mortmain. 3. BySeifurs
or ©i(lrefle,as Herriot Services, con-
trary to the opinion offome,who held
them ga triable By diftrefle onely,, and
not by Seifure, or aftioti , as Herriot
Guftomes j for upon the eloignement
of the bell bea/t , the Lord may main-
tain an aftion of detinue againft die
heire. 4. By cntry,or aftion, as Lands
forfeited to the Lori, by the ceding of
lyS_Ten»nt,or Efcheat, accruing unto
the Lord, either upon the atcaindout
or death of his Tenant without heire;
Tft the fir ft, the Lord may enter ox
maintain a Writ of Cejjavit ; in the
fecond , the Lord may enter or main-
tain a Writ of Efchejt. 5. By Di-
ftreffe or Aftion , as Reliefes and A-
merciaments. For Reliefes the Lord
may dift-rain , or bring an aftion of
debt; neither doth this any whit im-
pugns tbefortrer graundfoat as long
astjfe pent doth continue, &c. fcecaufe
; "l ndced
‘^k indeed Relief!: i* the fruit and ap-
provement of Services rather than any
% fervice , and for Amerciaments the
Lord may either diftrain or bring an
fl [* account of debt: other remedy the
M f Law hath provided againft ftrangers,
for detainin g of theie duties from the
W/ Lord, as to infill in one : if allranger
will detaine the Wards body or the
Mtlji Wards land from the right Lord, 4
iific Writ dtrelio d( cufiodia terr 4 & b*re-
dxlyeih againft the ftranger; but to
auja meddle with ftrangers were to wan-
. der out of the little Common weale,
is Lit and therefore to keep my felf within
sSfflj my bounds and limits, I will here con-
urngin elude, touching the two materiall
ituindt caules of a Manor, viz. Demelhes and
joufet Services: a word touching the effici-
jtm ent caule of a Manor, and then f
.iijfo will end the definition of a Ma-
tron nor.
fy; The efficient caule of a Manor is
:fe e exprefled in theie words, Oflong coo-
sitel tinuance, for indeed time is the mo-
afiict ther , or rather the nurleofManors $
jfuliii time is the loule that giveth life unto
ataslc every Manor, without which a Ma-
teu nordccayeth and dyeth , for ’tis not
nils the
■ ( 58 )
the two materiall caufes of a Manor,
but the efficient caufe (knitting and
uniting together^hofe two materiall
caufes)that maketha Manor.Hence'it
is that the King fiimfeTf cannot create
a perfeft Manor at this day , forfuch
things as receive their perfeftion by
the continuance of time , come not
within the compafle of a Kings Pre-
rogative , and therefore the King can-
not grant Freehold to hold by Copy,
neither can the King create any new
euftome, nor doe any thing that a-
mounteth to the creation of a new cu-
dome, and therefore a compofitiot?
made between the King and his Te-
nant , where he hath Herriot euftome
to pay io. It. in Levy thereof every
timeitfalleth, is no binding compa-
fition .* for this amounteth to the cre-
ation of a new euftome. E t bee om-
nia & fimilia funt temporutn non regum
fmprincipum opera , which fully veri-
fieththeold faying, Pltu valet vulgt-
rii conjuetudo quamregalis eonctjfu>ji\\i
is the foie caufe why the King cannot
create a perfeft Manor at this day , &
this is the cbiefe caufe why a common
perfon cannot create a perfeft Manor,
tel
iiuf
fab!
w
bin
■*
am
the
iii
fin
mi
the
rici
ploj
war
fen'
bis
Sta
ini
tk
foi
the
era
fen
WJ
tar
tk
a®
% but not the foie caufe ; for there is this
caufe farther; a perfeft Manor cannot
5 ®i fubfift without a perfeft tenure, be-
)r 'fc tween very Lord and very Tenant.*
»ts but a Common perfon cannot create
'ifcti a perfeft tenure, and confequently
A cannot create a perfeft Manor.before
1 * the Statute of §)ttia emptores terrartim y
Bnpi if any Tenant feieed of Land in Fee-
eKiajs Ample had infeoffed a ftranger , he
Ubyft might have referved what fervices he
artffljc thought fit, or had he referved no fer-
ragi vices, yet the Law would have im-
am ployed a perfeft tenure between the
ipoliit feoffor and the feoffee , for the feoffee
was to hold off the feoffor by the fame
stain fervices , that the feoffor held over on
reof n his Lord Paramount , but fince this
Dgcons Statute, If a Tenant feifed of Land
rathe: in fee,infeoffeth a ftranger, neither by
it her. the exprefle refervation of the feof-
i nntRj for, nor by the implyed refervation of
jfullyi the Law, can there be a perfeft tenure
t/kni created at this day between the feofe
wctjfii, for and the feoffee; for the feoffee lliall
ngcic hold inwnediately of the Lord Para-
lisdaj, mount not of the feoffor , and further;
1 cow as the King can doe nothing which a-
IJJjit mounteth to the creation of a new
k cu«
cuftome : fo a common perlon can
doe nothing which amouncechto the
creation of a new tenure 9 and there-
fore if there be Lord and Tenant by
10 s . rent , and the Lord will confirm
theeftareofa Tenant Twcnd. by a
Hawk^t paire of gilt Spurs, a Rofe, or
fimilia , this is a void confirmation ;0*
therwifc had it been if the Lord had
confirmed the eftate of the Tenant
Ttmndum per <5*. that had been a good
confirmation, becaufe it tendeth only
to the a bridgement of an old tenure,
and not to the creation of a new , and
as it is with a confirmation, <6 it is
with a compofiiion. Upon the reaion
of this ground, it is, that if the Lord
ofa Manor purchafe forrain land ly-
ing with out thePrecin&s and bounds
of the Manor he cannot annex this
unto the Manor though the Tenants
be willing to doc their Services , for
this amounteth to the creation ofa
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 the/e Manors to doe tbeir iuite
and iervice to vac Court , this is but
loll
Wa
Kttjf
ft,
IT®
lint
nail]
MOt
:U.
kits
wr,»
Hil
rtd
ikla
aid!
innat
eTfK
rico,i
n<
ietfie
rifjB
tick
CDC.
idffe
lisiik
a
(6t)
loft labour, in tbe Lord, to praftife any
iuch union; fornotwithftanding this
union they will be iiill two in Nature,,
howfocver the Lord covet to make
them one in Name, and the one Ma-
nor hath no warrant to call the Te-
nants to the other Manor, but every
aft done in the one to punifli the o£
fenders, in the other is traveriable;
yet if the Tenants will voluntarily
Ifubmit themfelves to fuch an innova-
tion, and the lame be continued with-
out contradiftion , time may make
this union perfeft, and of two diftinft
Manors in nature , make one in name
and ule : and fuch Manors peradven-
ture there are thus united by the con-
lent of the Tenants and continuance
of time, but the Lords power of it
felfe is not fufficienc to make any fuch
union, can fa qua fupra. But if one Ma-
nor holdeth of another, by wayofEfc
cheat , thefe’two manors may be uni-
ted together , fortior tnim tfi dijpofitin
kgu quam bominis. But in t his, that I
exclude common perlons from being
able to create a tenure , I may leem to
impugn many authorities which hold
at this day, that a tenure may be crea-
ted
(«»>
ted by a common perfon ; for to clear
this colour of contradiftion know
that tenures are two fold. Firft.im-
perfett , as where a man maketh a
Leale for years or for life , or a gift in
taile, here is an imperfeft tenure be-
tween the Leflor and the Leflee, the
Donor and the Donee; and this ini-
perfeft tenure I confefle may be crea-
ted by a common perion at this day,
Secondly, perfeft, between very Lord
and very Tenant in fee, 3nd fuch a te-
nure a common perfon could never
create fince the Srat. of Jimp-
tores terrarum , and confequently a
common perfon cannot create a per*
fc 8c Manor fithence; for without a
perfett tenure, aperfeft Manor can-
not fubfift. Thus much touching the
definition of a Manor, thus much I
fay touching the two materiall caufes,
together with the efficient caufe.
A word of another caufe of a Ma-
nor which appeareth not in the de-
finition fo manifeftly as the other cau-
fos doe , this is a caufe which among
the Logicians is termed fiaufa fine quo
non , and that is a Court Baron ; for
indeede that is the chiefe prop and
Pillar
jfe
aile
m
m:
alii
cot
on
tie
infi
ties
com
tiet
nots
offa
and
aril
tk
tog
per
can
t iii
mi
Him
(Ofc)
fc^ Pillar of a Manor , which no foontfr
Jin', faileth but the Manor falleth to
ft, ground : if. we labour to fearch out
d «* the antiquity of thefe Court Barons,
jOUjj we ftall finde them as ancient as Ma-
t(K nors themfel ves. For when the an-
yj cient Kings of this Realme , who had
3J [kii tl 16 lands of Euglandia Ventefm did fr}de Lamb.m
Dajbea con ferre great quantities of land up- his explication
on fome great perionages, withliber- of SaXon wor *
| tie to parcell the land out to other vtrbt Th f t . ut -
life inferior Taunts, K fcr»iDgfuchdo-SS.^ tte
ulh ties and Services as they thought Law.#. 41.
mh conv enient, and to Aeepe Courts 41.43.
wfeer€ tht 7 mi g ht tedrefle mifdemea-
aeit nots wilhin lheir p recinfts ; punilh
uitk offe nccs committed by their Tenants,
Inor ant * elee^e and debate controverfies
*1* arifing within their juriiaiftion ; and
bum their Courts were termed Court Ba-
•iilla ronS 5 l 3ecau ‘e > n ancient time liich
' perionages were called Barons, and
, came to the Parliament, and fate in
•inst l ^ c u PP er houfe ; but when time had
' l . wrought fuch an alteration, that
cb f ^l Jnors ^eH into the hands of meane
[t i nien,and fuch as were farre unworthy
ran °ffo high a calling :then it grew to
» ' acuftome, that none but fuch as the
% King
I
i
tP?:
Mama Charta.
c. 35.3 1. £.3.-
(64)
King would, fliould come to the Par-
liament, fuch as the King for their ex-
traordinary wiiedome or quality
thought good to call by Writ, which
Writ xwnjaacvut tarttum, yet though
Lords of Manors loft their names of
Barons, and were deprived of that
dignitie which was inherent to their
names, yet their Courts retaine ftili
the name of Court Barons, becaufe
they were originally erefted, for fuch
Perfonages as were Barons ; neither
hath time been Co injurious as to ira-
dicace the whole memory of their
ancient dignitie, in their name, there'
is (lamps left of their nobilitie , for
they are ftili intituled by the name of
Lords. Thefe courts differ from
Court Leets in divers refpefts : In
this, that Court Barons by the Law
may be kept once every three weeks,
or ( as feme thinke ) as often as it
lhallpleafe the Lord, though for the
better cafe both of Lords and Te-
nants, they are kept but very feldoni;
but a Court Leete, by the Statute of
tnagaa Charts , is to be kept but twice
every yeere ; one time within the
moneth after Eafter , and another
time
t0 '4 rime within a moncth after Michal.
)n.’, 2. In this, that Court Barons may be
* !» kept in any place within the Minor,
fit)** ( contrary to the opinion of Brian. J
BucaCourtLeeteby the Statute of
: m Magna Chart*, is to be kept in Certo
loco ac dtterminato , within the Pre-
nto ill cinft. 3. In this , that originally
ciaiitl Court Barons belonged unto inferior
tai Lords ofManors , but Court Leets
iJjfcifi originally belonged unto the King.
\j ockb 4. In this, that Courr Barons are in-
is to i/cident unto every Manor, Co thac eve-
tkiry Lord of a Manor may keep a Court
:,<teBaron , but few have Leets j for infe-
ie, triour Lords of Manors cannot keeps
wCourt Leetes without Jpeciall pre-
fer inscription, or feme fpeciall Patent
tfis.from the King. 5. In this, that in
the [Court Barons, the fuitors arc Judges,
twribucin Court Leets the Steward is
ten i Judge. 6 . In this, that in Courc Ba-
il! (afons the Jewrie confifteth oftentimes
and foflefle than twelve, in Court Leets
jtfdifciever; the reafen of that is, becaufe
atnteO°ne are impanelled upon the Jewrie
urivi'nt F ree-ho!ders,in Court Barons, of
hiaifhe feme Manor :But in Court Leets
grangers are oftentimes impannelled.
lint F 7. In
<«o
7. In this,that Court Barrons cannot
fublift without two fuitors ad mini-
muniy but Court Leets can wellfab-
fift without any (tutors. 8. In this,
that Court Barons enquire of no of*
fences committed againft the King,
but Court Leetes inquire of all of-
fenc.es under High Treafon commit-
ted againft the Crowne and dignitie
of the King- In many other refpefts
they differ ,as that a Writ of errour
lyethupon a judgement given in a
Court Leere , but not In a Court Ba-
ron. So in a Court Leete, a Capias
Iyeth,butina Court Baron, in fled
of a Capias, is ufed an Attachment by
goods: So in a Court Baron, an aft-
on of debt lyeth for the Lord himfelf
becaufe the fuitors are Judges , but in
a Court Leete,the Lord cannot main-
taine any a&ion for himlelfe , becaufe
the Steward is Judge; but omitting
thefe with many more, I come to the
Etymologie of a Manor. Some de-
rive the word Manor a mauendo , and
then it taketh his name either from
the Maoor-houfe which the Lord
maketh his dwelling place, or elfc <•
mamtido, quin DominM ac Untntts in
Aim-
Im
$1,
imr
itti
Lon
Hiti
Land
it
red;
deri
whii
beca.
guide
nanrs;:
lion',
bile'
nidi
Mint
rifdid
rathe
muc!
worn
nor-/!
IBCi
asnlei
A
ithsk
Mamnifin circuitu cohabitant ac ms"
nmt. Somethinke’tis termed Manor
Mb
it
reofi
_ — - no ICIUICU WliUlOr
from manuring the ground, and then
ittaketh it’s name either from the
life
,j Lords Demefnes, which the Tenants
K ^ : are bound to Manure,or elft front the
(on cm remaining in the Tenants hands,
andilk W j cb are likewife tilled and manu-
red; others are of opinion, thac it is
nPfltrr/J , C P 1 > a
.^derived of the French word ntejher^
QJ flj # " A V WI VA M * A tVJflkrl ^
rflB l 1C ^ % n '*fi et h to governe or guide,
!L becaufc the Lord ofa Manor hath the
“ guiding and directing of all his Te-
’ >antsiwithin the limits of his jurifdi-
! ^&ion , and this I hold the moft pro-
mologie 3 and moft agreeing
n' ; with the nature of a Manor: fora
01 ‘ Manor in thele dayeslignifieth the ju-
' t ® : '
. rifdiftion and royalty incorporate,
f father than the Land or Scite ; Thus
“'“much touching the Etymologie. A
au>i%ord touching thedivifion ofaMa-
“f'ao^A Manor is twofold, i. Re & no-
mine : 2 . Nomine tanttem. Re nomine^
where the two materiall caufes of a
» Manor, the efficient caufe, & can fa
the fine qua non, doe meet and joynero-
i * gerfier. Nomine tatttnm^ as where any
titmtpf t h e /e cau f es j s wam j n g . as to
M F 2 in
( 68 )
in the two niaceriall caufes , if th e
Lord will transferre over to &m e
ftranger the (ervices of all his Te*
nants, and referve unto himfelfe the
Demefnes ; or if he will pafle away
the Demefnes , and referve the fervi-
ces : in both cau ; es , the Lord perad-
venture hath a Manor, nomine , but
not otherwile , becaufe in the one
caufe he wanted) Demefnes, in the ei-
ther Services. So if a Manor difeen.
deth to Co-partners , and they make
partition , and the intire Demefnes
are alotted to the one , and the intire
fer vices to the other, the Manor is
now in fufpence, for neither of them
hath any Manor, but in name onely:
butifpartofthe Demefnes, and pan
of the Services be allotted to each
one, then have they each of them a
Manor, not nomine tanthm , but re (?
nomine. To infill in the efficient cau-
fes, If the King at this day will grant
a great quantitie of Land to any fab-
jeft, injoyntng him certaine duties
and fervices, and withall willetb, that
this Ihould beare the name of a Ma-
nor , howfoever this may chance to
gaine the name of a Manor, yet it will
nor
*fc
iel
!U
I Mt
P
o ria
hoidt
tlult
tuff
holt
den
<%
ofiht
lathi
defa
aredu
fct
need
Maw
feit
ders
dl
jeeir
dtb
iindec
Wfket
dteStets
ultim
W;«l
(«?)
U not be a Manor in the eftimation of
» v the Law. To infill in this caufe , fin*
li \ 5*j mn. If the King grant away a Ma-
liiifc nor to I. S, excepting the Courts and
pi: perquifites, the Grantee hath a Man*
vt thti orinnameonely . So if ail the Free*
Loti r holders die but one, it the Lord pur*
naw, thafeall the Freeholders land, or
skill pafle away the Serv ices of the Free-
ueSjioj Holders, or releale unto bis Free-hol-
teil ^f rs their fervices , noewithftan-
d* n g the Deniefnes and the Services
. D ffi of the Copy-holders, yet the Lord
Ithci hath but a Manor in Name, becaule
fcthe Freeholders are wanting, which
Kt 0(1 af c the tnaintainers and upholders of
m£(l ] the Court Baron, and conlequently
e$, ant necefl " jr y helpe to the perfection of a
;[C il to Manor.So if the Lord granteth away
( 0 [ ^he inheritance of all his Copyhol-
» bi»i cIers * or demifeth all his Lands gran-
ift«ed by Copie to another for 2000.
ywili yeeres ’ the Grantee in the one cafe,
L and the Le/lee in the other; have a
dia/ a ^ C founders and make admittan-
ces; and this in the eye of the world
' I? ■*> ic
HI a ma y keep a Cuftomary Court,where
0 p jthe Steward fhall be Judge , and (hall
is
( 7 °)
is a. Manor , though in the ) udgement
of the law it commeth farre (hort of
one.Thus much touching the divifion
of aManor.I might here handle many
coUaterall jurifdiftions, appropriate
to the hords of Manors, as that our e-
rafting Do ve-houfes , of proving the
Wils of their Tenants deceafed with-
in their Precinfts in many places* of
incloling Common, leaving lufficiem
befides for the other Commoners,
with many of the like ; Sed b<ec lubrn
tibenfque omitto, A nd thus doling up
this part of my T reatile touching Ma-
nors: I come to the other part toiuft-
ing Copyhold. 5ij
Sec. XXX If.
I Need not Hand to dilcourle at
large the antiquity of the Copy-
holders ; for if you call your eye bad
to that is pad, you fhall ealily per-
ceive that Copyholders , though ve-
ry meanly difeended, yet they come
ofan ancient houfe ; and therefore if
in this point you delire latisfaftion,
call to minde what I have already
Ipoken;
Givi
m
tbet
it
Wi
or'
byr
lab
Site,
royi
Oiifh
fpeft
ofnc
wen
at in
fa
Ovj
trary
Wrer
»!(
Jj«i.
(bffiti
(70
fpokenj and ( if I miftake not ) it
It; i will fufficiently anfwer your defire.
7 Give me leave to goe a ftep further,
*- and to examine the (everall names
PPP which Copyholders have had from
time to time allotted unto them,tog 8 -
prm ther , with their proper Etymologies;
Mi immediatly upon the Conqueft : they
fplia were known by the name of villaines*
j# or Tenants in Villanage ; fo termed
/■M by the Normans , either in refpeft of
'dk‘ Imbecillity and incertainty of their e-
sc/ofc dates , which were grounded upon a
'chU very weak foundation, wholly depen-
jrtw\ ding upon the will of the Lord , and
Ou ft able at his pleafure • or in re-
fpeft of their Services, which favoured
j[ of nothing but flavery , whether they
were etrta »c determinate , or incerta
ac indeterminjfa } ubi feiri non potent ve~
fit mfpere, qjtale fervitium facere deberent in
fM Craft mo, as Bratton fpeaketh; con-
ourejti trary to the opinion of fome, who
| eali';; hold,tharthe Service of Copyholders
ttaj were never fub/eft to fuch incertain-
tfiey: ties : or laftly , in relpettof the per-
Jiereh! fops , who for the mod part were Vil-
tiM laines ; howfoever fbme freemen did
fed* fometimes hold Land by the fame te-
fpot F 4 nure
( 7 *)
n nre: theleaft of thefe three reafooe.
is fufficient to make them defer ve that
name , but j oyn them together , and
then he that judgeth moft favorably
of them, will chink this the trueft title
that could be bellowed upon thetp:
yet feme there are , who in bthalfe of
thefe Tenants, flick not to raaintaine
( howfoever in refpeft of their effaces,
they may not unfitly be termed Te-
nants in Villauage , being in fuch
Grange fubjc&ion to their Lords)that
neither in relpett of their Services,
nor their Perlons they could merit
that name ; efpecially if we take tfw
word in that reproachfull fenfe thatit
is ulually taken in at this houre, But
if we account thole villain Services
which any way touch Husbandry , as
Plowing, Sowing, Reaping and fuch
like ; and thefe men villaines , who
exercife themfelves in any point of
Husbandry , then they argue , that
their Tenure could in no wife havean
apeer tenne than this ; for they ccn-
fefle , that thefe Copyholders were
for the moll part , Iiujlici &
and their Services wholly ad Rufiici-
titemtendentia: Howfoever, I date
not
r\
m
M|
fit;
coni
Sen
;nd
kne
k
hit
h
But
wife
( eri.
at
then
U
W
the
in:
via
the
gan
the
W
itre
%
tali
tb
( 73 .)
[ K i not wholly dUallow of this opinion,
though I cannot altogether approve
ftol of it, for I admit, and in a manner
l fa content, that umonglt the Harmans^
:W: thefe Services, which we call Rurall
P 4 Services, were called villain Services;
and thole men whom we term Huf-
tutiii bandmen were termed villaines ; and
kit® doe hold that the Copyhold Services
ten®! in thole dayes were more (lavilh,than
tag iit Rurall $ and they themlelves rather
rWi; Bondmen, than Husbandmen ; other-
ir wife we Ihould make their tenure dif-
uld it fer in nothing from ancient Soccage
:tik tenure, which I allure my lelfeiso-
rfetii therwife: for though Soccagers were
oute. Ruftiques , and in that fenfe Villains;
lin Sff yet their tenure was never noted by
Mr the name of a tenure in Villenage, till
ngittl: in many places their Corporall Sef-
litk's.i vices begun to be turned into money ;
a y pot then for diftin&i.m fake , the one be-
jrgue, gan to be called Liberum Seccagium.
vifefc? the other , VtUanium Soccagium.
c (Jjcj- But long before thefe. Copyholders
i were termed Villaines , and therefore
without all doubt their tenure was in
m bafenefle and flavery , a degree above
t ) li £ be ancient Soccage tenure ; till at
length
C74)
length the Lords of Manors being fra-
med to more civility, began then to
tbinke it a mod uncharitable part to
keep their poore Tenants in that bon-
dage; therefore out of the remorfeol
of their own confidences, and the
compaffion of their Tenants mileries,
by little and little , they infranchifed
them , and relealed them of their hea-
vier burthens, relenting lervices of
another nature in liew of them. Thus
having lhaken offthe fetters of their
bondage, they were prefently freed
of their opprobrious name , and had
other new gentle ftiles, and titles
conferred upon them ; they were e-
very where then called Tenants by
Copy of Court Role , or T enantsat
will, according to the Cuftome of the
Manor : which ftiles import unto us
three things, i . No mm. 2 . Uriginem.
3 Titulum. His name is Tenant by
Copy ofCourt Rolejtor he is not cal-
led Tenant by Court Role, but by
Copy of Court Role; andthisisthe
foie Tenant inlaw; whoholdethby
Copy of any Record, Charter,Deed,
or any other thing. 2. His com-
mencement is at the will of the Lord.
For
_ Cl —
Fffi
tell
lie
the
me
tfte*
ten
the
ta
pn
Te
ink
t kl
m
bold
not*
itb*
ciei
the
tbn
hk
lire.
Wll
We
Its
ki
( 75 )
**#» For thefe Tenants in their birth, as
ijjta well as the Cuftomary Tenants upon
! -, 1 the borders of Scotland, who have
life the name of Tenant , weremeerTe-
: ®*i nants at will : and though they keep
s i the Cuftoms inviolated, yet the Lord
iiift might , Ians controll , ejeft them ;
M neither was their eftate hereditary, in
rfW the beginning ; as appeareth by Brit-
i&vita ton : for if they dyed, their eftate was
tail prefently determined , as in cafe of a
tcrsofl Tenant at will at common law; and
ffll/li: in lome points, to this prefent houre,
i id: the law regardeth them no more, than
nd k a meer Tenant at will ; for the free-
] viec hold at the common law , refteth
'mants not in them, but in the Lords ; unlefle
Tewur it be in Copyholds of Frank Tenure,
ftomeof. which are moft ufuall in ancient De-
ortMt mefhe; though fometimes outofan-
i.Ongk cient Demefne ; we fhall meet with
Tw the like fort of Copyholds, as in Nor-
itisnotc tbjMptonJhirejhere areTenants which
\i t hi hold by Copy of Court Role , and
Jtliiiii: have no other evidence, and yet hold
Witt! not « the will of the Lord. Thefe
otQc kinde of Copy holders have the F rank
■jj s jj Tenure in them, and it is not in their
Lords, as in cafe of Copyholds in
ft ‘ ’ bate
' <70
bale tenure. Befides, Copyholders
/hall not attourn upon the granting
away of the Manor,no more thanTe-
nants at will at the Common law; and
their eftate can be no infranchifement
to a villaine , no more then a meere
eftate at will. And farther, their
lands are parcell of the Lords Demef-
nes, as well as lands granted away at
Will, according to thecourfeofthc
common law j and for his title and
aflurance,that is according to the cu-
dome of the Manor : F or the Cuftome
of the Manor hath Co eftabliflbed, and
fo fixed them in their land, that if they
doe their Services and Duties , and
perform culiomes of the Manor, they
are as well inheritable , accordingto
the cuftome , as he that hath a F rank
Tenement at the common law: and
fichence cuftome is the life and foule
of Copyhold E flares, and what/oever
/hall , or can be fpoken touching Co-
pyho!ds,arifeth from this Head , and
from this fountaine 5 Give me leave
in the /econd place to /peake lointbing
concerning them.
Sec.
( 77 )
Sic. XXXIII.
C U Homes are defined to be a law,
or Right not written, which be-
ing eftablifhed by longufe, and the
content of our Anceftors hath been,
and isdayly pra&ited.
Cuftome,Prefcription,and Ufage;
howfoever there be corrdpondency
a nicngft them , and dependancy one
ontheother, and in common Iptech, CuftomejPre .
one of them is taken for another , yet f C riprion,and
they are three diftinft things. Cuftoni u%,haw
and prefcription differ in this. i. Cu- they differ.
Horn cannot have any commencement
fince the memory of man, but a Pre-
fcription may, both- by the com-
mon law , and the Civil] : and there-
fore where the Statute, i. H. 8.
faith , that all aftions popular; muft
be brought within three yeares af-
ter the offence committed ; who-
mever offendeth againft this Sta-
tute, and doth efcape uncalled for
three yeeres , he may be juftly faid to
prefcribe an immunitie againft any
fuch Aftion. 2 . A Cuftonie touchr
tth many men in general! ; Prefcrip-
tion.
(?*)
uon, this , or that man in particular :
and that is the reaion why Prefcripti-
on is perlonall , and is al wayes made
in the name of fbme perlon certaine,
and his Anceftors, or thole whole e-
Hate he hath ; but a Cuftome having
no perlon certaine in whole name to
prefcribe, is therefore called and al-
1 edged after this manner. In liich a
Borough, in liich a Manor , there is
this or that Cuftome. And for U*
iage , that is the efficient caule , or
rather the life of both; for Cuftome
and Prelcription lole their being , if
Ulagc faile. Should I goe about to
make a Catalogue of leverall Cu-
ftomes, I fhould wich Sifipbuf,faxum
volvere,' undertake an endlefle peece of
worke, therefore I will forbeare,
fince the relation would bean argu-
ment ofgreatcuriofitie , and ataske
ofgreatdifficultie : I will onely let
down a briefe diftinttion of Cuftoms,
and leave the particulars to your own
oblervation. Cuftomes are either
Generali or Particular. Generali,
which are part of the Common law,
being currant through the whole
Common-wealth , and uled in every
County,
- —
te
ajii
item
tik
ffibr
lew
JeJad
life
■,tb«
nital
aufe,
tat.
:IC
!»,)«
lepeett
forba:
tan ii;
id am
pours
ire®
Jeueril
lout?'
( 79 )
County, every Citie, every Townei
and every Manor. Particular, which
are confined to fliorter bounds and
limits, and have not luch choice of
fields to walfeein, as generall Cjr-
ftomes have. Theft particular Cu-
ftomes are of two forts, either dilal-
lowingwhat generall Cuftomes doe
allow , or allowing what generall
Cuftomes doe dilallow, as for 'ex-
ample lake. By the generall Cuftonis
of Manors, it is in the Copiholders
power to fell to whom hee plea lech,
but by a particular Cuftome ufed in
fome places, the Copyholder , before
he can inforce his Lord to admit any
one to his Copyhold , is to make a
proffer to the next of the blood, or to
the next ofhis Neighbors, ab oriente
/Vi* , who giving as much as the par-
ty to whom the Surrender was made,
fiiould have it : lo on the other fide,
by the generall Cuftomes of Manors,
the palling away of Copyhold land
by Deede,for more than for one yeere
without licence is nor warranted;
yet fome particular cuftomes in lbme
Manors doe it:lo by the generall Cu-
ftomes of Manors, Preftiitments, or
any
(8o)
any other Aft done in the Leete, after
themoneth expired, contrary to the
Statute of Magn t chart a, and 5 1. E,^.
are void, yet by fome particular Cu-
ftomes, fuch afts are good , and fo in
millions of the like , as in the fequell
of this difeourfe fhall be made mani*
feft. And therefore, not to infill any
longer in dilucidating this point , let
us in few words lea me the way how
to examine the validity of a Cu*
koine : For our direftion in this bufi.
nefle, wefhall doe well to obferve
thefe fixe Rules, which will ferve us
for exaft tryall. 1. Cudomes and
Prelcriptions ought to be reafonable,
and therefore a Cuftonie that no Te-
nant of the Manor ihal put in hisCat*
tell to u(e his common in Campu femi ■
natisy after the Come fevered, untill
the Lord have put in his Cattell, is a
void Cuftome, becaufe unreafonable;
for peradventure the Lord will never
puc in his Cattell , and then the Te-
nants fhall lofe their profits : fo if the
Lord will preferibe that he hath fuch
a Cuftome within his Manor, that if
any mans beads be taken by him up-
on his Demefnesdamage Fefant , that
he may detaine them antill the ow-
^ nerg of the beafts give him fuch to-
% compence for his harmes, asheebim-
'* fclfefhall requeft} this is an unreafo-
) nable Cuftome, for no man ought to
k&f be his owne Judge. 2. Cuftomes
i»h and Prefcriptions ought to be accor-
®ifl ding to common right, and therefore
(Wi if the Lord will prefcribe to have of
smjli every Copyholder belonging to bis
of 1 ( Manor , for every Court he keepeth
still a certaine fumme of money , this is a
0 ofc' void prefcription , becaufe it is not ac-
Unt cording to common Right, for hee
ttm ought for Juftice fake todoeic GratU •
jlcnit but if the Lord prefcribe to have a
at bo! certaine Fee of hi s Te nants, for keep-
ing ing an extraordinary Court, which is
mfiji purchafed only for the benefit of feme
d,a particular Tenants, to take up their
ittdl.i Copyholds and fuch like ; this is a
realoK g°°d prefcription , and according to
trill* common right. 3. They ought to be
1, [g upon good confideration , and there-
,f 0 jr fore if the Lord will prefcribe that
yfi whofoeverpafleth through theKings
. (j,;; High-way which lyeth through his
j, j ffl ij Manor, fhould pay him a peny for paP
int ,ih ^ n g»*his prefcription is void, becaufe
ft G if.
M
C8»)
*w<
it is not upon a good confideration,-
but if he will prefcribe to have a peny
of every one that pafleth over fuch a
bridge within his Manor, which
bridge the Lord doth ufe to repaire,
this is a good prefcription , and upon
a good confederation. So if the Lord
will prefcribe to have a fine at the
marriage of his Copyholder, in
which Manor the cuftome doth ad-
mit the Husband to be Tenant by the
courtefie, or the feme Tenant in Do-
wer of a Copyhold, this prefcription
is good, and upon a good confiderati-
on; but in fuch Manors, where theft
eftates are not allowed , the Law is
otherwife. 4. They ought to be
compuIfary,and therefore if the Lord
will prefcribe that every Copyholder
ought to give him fo much every
moneth to beare his charges in time
ofwarre, this prefcription is voidjbuc
to prefcribe they ought to pay fo
much money for that purpofe, is a
good prefcription ; for a payment is
compulfiry, but a gift is Arbitrary at
the voluntary liberty of the giver.
5 They ought to be certain;and there-
fore, if th^ Lord will prefcribe that
when-
tati’
xerfc
!or,t
(%)
whenfoever atiy of his Copyholder^
die without heire, that then another
ofthe Copyholders fhall hold the
lame lands for the yeer following, this
preftription is void, for the incercain-
tyjhut if the Lord will prefcribe to
have of his Copyholders, 2 d . an Acre
Rent,in time of warre 4 d . an Acre,
this prdcription is certain enough,
m < 5 * They ought to be beneficiall to
ji [ heni that alledge the preftription •
rati and therefore if the Lord prefcribeth
t/ctijt that the cuftome hath alwayes beene
1M11: within the Manor, that what diftrefle
r foe ver is taken within his Manor , for
iftkct
felt:
Lffl any conmjon perfons caufe, is to be
;kto;impounded for a certainc time within
'thelthis pound ; this is no good preftrip-
(yklition, for the Lord is hereby to receive
c(] e( fa charge, and no commoditie: but if
sina^he preftription goeth further, that
vjii'.-the Lord (hould have for every bead
j pjf° impounded a certaine fomme of
i, is /"oney, this is a good prefcription. If
« we defire to be more fully fatisfied in
tafyjthe genera 11 knowledge ofpreftripti-
gjjgDns andCuftomeSjWe (hall finde ma«
^ly Maximes,which make very materi-
ie tk 1 " for this purpofe, amongft which,!
# G 2 hav«
( 84 )
have made choyce of thefe three,'as
moft worthy of your obfervation.
i. Things gained by matter of Record
only, cannot be challenged by pre*
fcnption ,and therefore no Lord of a
Manor can prefcribe to have fellons
goods, fugitives goods, Deodandsand
fuch like; becaufe they cannot be
forfeited untill it appeare of Record:
but waives, eftraies, wrecks, and fucli
like may be challenged by prefcrip*
tion, becaufe they are gained by u-
(age, without matter of Record.
2- A cuftome never extendeth to a
thing newly created ; and therefore
if a Rent be granted out of Gavel*
kind-Land , or land in Borough-
Englijh, the rent fhall defcend, accor*
ding to the courfe of the Common
Law,not according to the Cuftome.
If before the Statute.^ 2 ,H. 8 . Landf
were devifeable in any Borough , 01
City by fpeciall Cuftome; A Rent
granted out of thefe Lands, was not
devifeable by the fame Cuftome ; for
what things foever have their begin 1
ning fince the memory of man, Cu-
ftome maintains not. If there be a
Cuftome within a Manor, that for
every
*1
h
itnc
ton
but
ant
the
fid
Eft
a b
Jtt'J]
fet
n
defy
obfo
ttofl
igedk
no Lot
ihivei
Deoik
j cam
reofRc
cks,ai{
pai:
of lit
sdetl
Jtfe
o! G
in B»
tend,*
ieCos
ic Cut
m
*01$
l, hi
i,wn
omt;
firbe;
nan, I
hereb
, tb«
tn
every houle or cottage, a*. Fine lhall
be paid, if any Tenant within thele
liberties maketh two houles of one,
orbuildeth a new houle, hee lhall
not pay a fine for any of thele new
houfes; for the Cuftome onely exten-
ded to the old. So if I have Eftovers
appendant to my houle, and I build
a new houle, I lhall not have Eftovers
for this new built houle upon this
ground. It hath been doubted, if a
man by Prelcription hath courle of
water to his Fulling-mill, he conver-
ting thele into Corne-Mdls , whether
by this convertion , the Prelcription
is not deftroyed, in regard that thefe
corne-mills are things newly created ;
but becaule thequalitie of the thing,
and not the fubftance is altered;
therefore this alteration is held inef-
ficient to 'Overthrow the Prelcripti-
on; for if a man by Prelcription hath
Eftovers to his houle, although they
alter the Roomes and Chambers in
the houle , as by making a Parlour,
where there was a Hall, vtl e converfc
yet the Prelcription Hands ftill in
force : and Co if by Prelcription I
have an ancient Window to my Hall,
G 3 and
and I convert this into a Parlour, yet
my neighbours upon this change can-
not flop my Window.; Cattfa qm fit -
pra. 3 . Cuflonies are likewife ta-
ken ftri&ly, though not alwayes lite-
rally. There is a-cuftome in London,
that citizens and freemen may deviie
in Mortmayne : A citizen that is a
forreiner , cannot deyife by this cu-
ftome. An Infant by the cuflome of
Gaze.lhjnd , at the age of fifteene,may
make a Feoffment ; yet he cannot by
the cuflome make a Will at that age
topaffe away his Land ; to make a
Leafe, and a Releafc , which amoun*
teth to a Feoffment. If there be any
cuftome that copyhold-lands may be
leafed by the Lord, z el per Supervisor,
vel deputatum fuperviforis : This cu-
ftome giveth not power to the Lord,
to authorize any by his laft Will and
Teftament , to kecpe a court in their
owne name , and to make Leafes, Se-
cundum confuetudinem Matter 'd : but
thefe cuflonies have this drift con-
ftruftion,becaufe they tend to the de-
rogation of the common law ; yet
they are not to be confined to literal!
interpretation; for if there be a cu-
ftome
(Iffljv
'ak
likfifi;
lmjs.
:inLi
:c»te
fita;
leciEc
jrrk
ram
fracro
.eiebt'
: This
deb
I Wilt
utiml
leafy
tri:k
id co
jtbeo
W;)
tliteti
beat
( 87 )
florae within any Manor , that copy-
hold lands may be granted in Feoda
fimpltci , by the fame cuftome they are
grantable to one, and the heires of his
body, for life, for yeeres,or any other
eftate whatfoever ; becaufe, Cut licet
quod majtu , non debet quod minus eft
non licere ; fo if there be a cuftome
that copyhold lands, may be granted
for life; by the lame cuftome they
may be granted, Durante viduitatejbat
not e converfijbec&ufe an eftate during
Widdowhood, is lefle then an eftate
for life. Before the Statute of 32.
H . §. Lands in certalne Boroughs
were devifable by cuftome : By the
feme cuftome was implicitit waran*
ted, authorizing Executors to fell
lands devifeble. Now with your
patience, I will onely point at the
manner of pleading of cuftomes , I
finde a fou re-fold kinde of Prefcri-
bing.
r. To preleribc in his Predecef
fours, as in himfelfe , and all thofe
whole eftate he hath.
2. To preferibe generally, not ty-
ing his Prdcription to place, or per-
fon, as where a Chiefe Juftice pre-
C 4 fori-
( 88 )
fcr ibeth , that it hath been a fed , that
eueryChiefeJuftice may grant Offi-
ces^ or where a Sergeant prcfcribetb,
g)uod talid habetHr amfuetuds , that
Sergeants ought to be impleaded by
originall Writ,and not by Bill.
3 To Prefcribe a place certaine.
4 To prefer ibe in the place of another.
The firft fort of thefe Prefcriptions,
a Copyholder cannot ufe, in regard
of the imbecillityof his eftate; for
□o man can Prefcribe in that manner,
but onely Tenants in Fee Ample, at
the Common Law.
Thefecond fort of thefe may 6«
ufed fbnietimes by Copyholders in
the pleading of a gencrall Cuftome,
but in alledging of a particular Cu-
ftome, a Copyholder is dri ven to one
of the laft, and as occafion ferveth, he
ufeth fometimes the one , fbnietimes
the other. If he be to claime Com-
mon, or other profit in the foyle of
the Lord, then he cannot Prefcribe
in the name of the Lord, for the Lord
cannot Prefcribe to have Common or
other profit in his owne foyle ; but
then the Copyholder mud of neceffi-
tie Prefcribe in a place certaine , and
alkadge,
(8 9 )
alleadge, that within fuch a Manor ,
{*■ there is fuch a cuftome, that all the
prdtt Tenants within that Manor,have ufed
^)i to have common in fuch a place , par-
pbii cell of the Manor : but if he be to
[Ml, claime common , or other profit in
Wfflt the foyle of a ftranger , then he ought
iofml to prefcribe in the name of his Lord,
faying, that the Lord of the Manor,
i in if and all hisAnceftors , and all thofe
&;,• whole eftate he hath, were wont to
km have a common in fuch a place for
Ajfc himfelfe, and his Tenants at will,
&c.
say
io\dffi Sec. XXXIV.
Cilia
kuliit ' | A Hus much of cuftoraes. I come
iveoioi -L now home to Copyholders: and
fervat in the third place I hold it the bcft
fomeiir courle to dilate upon the manner and
inicfr meanes of granting Copyholds;
ifojjt wherein I will onely rely upon thefe
Jh£i five parts.
ihcLoi
modi 1 Upon the perlbn of the Grantor.
k ; h 2 Upon the perfon of the Grantee,
necet 3 Upon the Grant ic felfe.
4 Upon the thing Granted.
ill4 5 Upon
'( 90 )
5 Upon the Inftruments, through
whofe hands, as through Conduit-
pipes , the lands are gradatim con-*
veyed to the Purchaibr.
And firft,of the perfbn of the Gran-
tor. Sometimes the Lord himfelfe is
Grantor j iometimes a Copyholder.
In voluntary Grants made by the
Lord himfelfe , the law neither re-
Ipeð the quality of his Pcrlon,noi
the quantity of his Eftate 5 for be he
an Infant, and fb through the tender-
nefle of his age, infufficient to difpofe
of any land at the Common law /at
non compos mentis , an Idiot, or a Lu-
natiq ue ; and fo for want of common
reafon , unable to traffique in the
world ; or an Out-law in any perfo-
nail aftion , and fo excluded from the
prote&ion of the law ; or an Ex-
communicate , &c. and lo reftrained,
ab omnium fidelmm communions , or at
lead , a S acramentorumpirticipatione :
notwithftanding thele infirmities and
difabilities, yet he is capableenough
to make a voluntary Grant by Copy,
for if a femefeigniorejje take Baron, and
they two j'oyn in a voluntary Grant
(90
*>' ? by Copy , this ftall ever binde the
Ski. Feme and her heires , and yet £he is
not jtiijurii , but fub potcftate viri , be-
caufc the cuftoroe of the Manor is the
chiefe bafit , upon which hands the
rfte whole fabrick of the Co py hold eftate:
JIM and therefore what cuftonie doth con-
firme to a Copyholder , the law will
ailj ever allow , and never leeke to avoid
nefc it , in refpett of any fitch imperfefti-
sPctds,: on in the Grantors perfons ; and the
quantity of the Lords eftate is no
(fa more refpefted than the quality of
■to£; his per/on: for if his intereft be law-
fa; , full , be his eftate never fb great , or
(,01 1. never fo little ’tis not materiall; for
ofcom be it in F ee, or be it in tayle or dower,
qiie ii or as Tenant by courtefie , for life or
UBfjt foryears, as Guardian, or as Tenant
cdtrx by Statute, or asTenantby Elegit,
or ut orat will;' the leaft of thefe eftates, is
it# a fufficient warrant to the Lord , to
i»,oi Grant any Copyhold efcheated unto
( isjttfto him , for as long time as the cuftome
lidtsii ‘Joib allow; the ancient Rents and
tenon: Services , being truely relerved : and
iyCof thefe Grants (hall ever binde them
1100,1 rhathave the Inheritance, orFrank-
ijGi‘ Tenement of the Manor, as well as
i offices
offices granted for life, bythechiefe
Jufticeofthe Common 'Pitas , whole
office is but at will, ffiall ever con-
holder upon voluntary Grants made
by Copy, doth not derive his eftate
out of the Lords eftate only, for
then the Copyholders eftate fliould
cea(e, when the Lords intereft deter-
mined! , Nam cejjante primitive cejjjt
derivatives , but the life of the Copy-
holders eftate is the cuftom of theMa-
nor’; and therefore whatfoeveribefal-
leth the Lords intereft in his Manor,
be it determined by the courle of time
by death, by forfeiture, or other
nreanes; yet if the Lord were Legtti-
mus Vomitsus pro tempore ; how finall
foever his eftate was, that is enough:
for the fame cuftonie that fixeth a Co-
pyholder inftantly in his land upon
his admittance, will likewife prefer ve;
and proteft his intereft , to the end ,
In fuch manner , that though the
Lords intereft faileth, yet his ffiall
never fall to ground , being upheld
by fuch a proppe,fuch a pillar, unlefle
perchance the Copyholder offer vio-
clude the fucceeding Juftice. The
reafon of the Law is this : A Copy-
lencc
altt
In
A(i
«:
re hiit
:dj,
lire I
ME
mi:
(theft
note
train
m
tfeoft
, 01(11
itr (1/
fori
iseno.
sflhil
landti;
ifti
tint
in gh i 1
his I
jupk
fence to his Founder in breaking the
cuftome. If the Lord granteth a Co-
pyholder from the Manor , by gran-
ting the inheritance to a ftranger ,
though now one of the cbiefe pillars
of a Copyhold efface is wanting, viz.
tobe parcelloftbe Manor; yet be-
etle the Land, at the time of the
Copyholders admittance , had this
neceflary incident , this feverance,
being a matter ex pofl falio , cannot
amount to the deftruftion of the Co-
pyhold, e/peciall . being the foie aft
of the Lord himfelfe. If a Manor be
granted upon condition, and before
the condition is broken , the Land is
granted by Copy, then the Manor
becomes forfeited, and the Feoffer
entreth; yet the Copyhold effate re-
miineth untouched , becaufe lawfully
efiablilhed by cuftome , and yet all
mean effates and charges whatfbever,
granted by the F eoffee 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 andpurpofes , is in the
fame plight that he was in at the time
of
(H)
of the making of the eftate. Ifa man
feized of a Mannor in Fee , dyeth fei-
zed, having iflue , a Daughter, and
his wife being privement injiint with a
lonne, and the daughter granteth
lands by Copy , this Grant (hall
ftand good againft the tonne , for the
daughter Was Legitima Domina pro
tempore. So if the Feoffee of a Ma-
nor, upon condition to infeoffee a
ftranger,the next day maketh a volun-
tary Grant by Copy, this fhall binde,
and yet his intereft was to have but
final! continuance. If a Manor be
granted with a feme in F ranke marri-
age , and there is a divorce had, caufi
precontract™ • fo that now the inte-
reft of the Manor is granted to
the/rnwonely , and by relation, the
marriage is void, ab initio: yet be-
cau/e the Baron was Legitimus Domi.
ms pro tempore , any Copyholders
eftates granted, before the divorce,
remainesgood. So if a man efpoufeth
a feme feigniorejfe , under the age of
confent , and after fhe doth difagree,
though the marriage by relation was
void , ab initio , yet Copyholds gran-
ted before difagreement , fhall ne-
ver
wbe
1ft
ion
iawr
theE
diitf
tbi
mtk
M«i
oft!
Lore
confi
iLeii
bill.
itbt
none'
tratiK
theM
feit
thisb
ofaf
milt
totfee
i
Mourn
( 95 )
, ^ ver bee avoided , can fa qua fupra .
If the Lord of a Manor committed!
■*Pi felony or murder, and procesof out-
lawry be awa rded againft him ; after
5b® the Exigent , he granteth Copyhold
s fe:; ellates, according to the cuftome, and
:fm, sf then is attainted , theft Grants are
11 Dw authenticall, though by relation, the
Aji'i Manor was forfeited from the time
toinfeof the Exigent awarded. So if the
ifesraLord had been attainted by Verdift,or
toMtconfeflionjany Grant by Copy , after
rate (the felony, or murder committed,
fcfhall Hand good , notw.irhftanding
ate the relation. If the Lord of a Ma-
:W,«nor acknowledge a Statute , and then
rente rgranteth lands by Copy ; and after
grid the Manor is delivered to the Cogni-
tion,:^ in extent, the Grant cannot by
lii: yeiithi s be impeached. And if the Lord
ttiwJiofa Manor taketha wife, and after
lojyW^keth Copyhold eftates, according
f; uff.r.' 0 the cuftome, and dieth , though the
hath this Manor alligned unto
feijc ((her for her Dower , yet cannot (he 1-
§agia ¥ °id the/e Copyhold eftates , becauft
licit wi^he Copyholders are in by a title Pa-
lis gM> raniollnt > the title of the feme, viz. by
bill p(.cuftome. But peradventui £ , if the
«' heire
(. 96 )
heire after the death of his Anceftor,
before the alignment made unto the
feme for her Dower , had granted
Lands by Copy, the feme might a-
void thefe Grants , becaufe inftantly
uponthe death of the Baron , her title
received his perfe&ion , and nothing
more was wanting to the confirmati-
on of her Intereft : but though
the quantity [of the Lords eftate
in the Manor be not refpe&ed , yet
the quantity of his eftate] in the
Copyhold is regarded : For if
a Copyholder in Fee, liirrender to
the ufe of the Lord for life, th? Re-
mainder over to a ftranger , or refer-
veth theReverfion to himfelfe if tht
Lord will Grant this by Copy in Fee,
whatioever eftate the Lord hath in hit
Manor; yet having but an eftatefbt
life in the copyhold ; no larger eftate
fliall pafle , then he himlelfe hath,
ffuit nemo potefi plus juris in aim
transferre quant ipfi habet : and further
oblerve, that fometimes the lawre-
fpefteth the quantity of the Lordse-
ftate in the Manor, for what aftsfo-
ever are not confirmed by cuftome,
but only ftrcngthened by the power,
ali-
as
ha 1
U
it :
a)
bo
ist
tk
tl
ir
t!
V
wl
tar
kit
fir 1
il r
ot!
an
»i
of
ki
Gut
ait
h
<^4 authority and intend of the LorjJ s
itdti: have no longer continuance than the
[ i Wp Lords.eftate contioijath: and therefore
it is held, thac if a Tenant for lifeof
rac a Manor, granceth a licence to a copy-
:ta,bi bolder to Alien, and dietb,the licence
is deftroyed, and the power of aliens-
ottew tion ceafeth. As lor the quality, of
I : i the Lords eftate in the Manor , thac is
Ik Ltd i much more now reipcfted, than either
it idpefic the quantity of his eftate, or the quail-
's diaai ty of his per Ion : for if rheJLord or he
H ; f who foever it be that maketh a volun-
&7tt. tary Grant by copy, hath no lawfuil
life , i imereti in t he Manor, but onely an u-
p.«' forped title, his Grant (hall never
wlit; fo binde the right owner • but chat
S upon bis entry he may avoidethem 9
other wife we (hould make cuftome
to a di agent in a wrong , w hich the law
nolif will never fuff, r ; a nd yet ifche Lord
Wft! of a Manor by his Will in writing de-
Djiri/a 1 viieth , that his Executor (hall Grant
Copyhold eftaces, Secundum confiutu-
B is 1* dinem M aeerii , for. the payment of his
fib Lo« debts, See. and they makevolnnrary
what a& Grants accordingly : theie Grants
by cut are good , notwithftanding the
bytbep Executor hath no intereft in the
H Mir
<9»!)
I^anot y nor is Dominut fto Uttu
fort.
If a Diflc*f° r °^ a Manor dieth Cei-
led y notwitbftanding his heirecome
in by ordinary cour ft ofdifcent, yet
becaafe the Tort commenced by his
Anceftor, is dill inherent to his eftate;
if any copyhold eftate be gram ed by
theheire , it maybe avoided by the
Difleifor , immediately upon his re-
covery, or upon his entry ; and lb if
the Difleifor infeoffe a ftranger of the
Manor; notwitbftanding the feoffee
come in by title , yet no Grant mads
by him of copyhold land , (hall eter
binde the Difleifed , no more than a
Grant made by the Difleifor him.
felfe. ' '
If Tenant in taile of a Manor dif
continued] anddieth; and after the
difcontinuance Graateth copyhold e-
ftates , the heire recovering inaFor-
niidon intheDiftender, may avoids
theft Grants ; for though the Difcon-
tinuecome in under a Juft title, yet hit
intereft 'being determined by the
deathof the tenant in tayle, the conti
nuance of the pofleflion is atort to thi
heireg and AttsdonebyTortfeifors
tending
the oli
IBtO
mrig.
minor
ijb
bene
ny,
i util.
If}
in df
ElW
tnW
imi
Ten:
manoi
of Era
ietha
•or.'
ttitif
*951:
to
til
-
( 99 )
»iw I’ tending to the dil-inheritance of the
right owners cuftome, will never fo
“ftrengtheti , but they may be anihi-
«®lated. So if a manfeifedofa manor
“™,in right of his wife , Alienech this
™nanor anddieth, any Grant made of
:nuohb' 0 py hold eftates, after his death may
bepfoe avoided by the feme , upon her en-
avoid kry » or upon her recovery , in a (fui
:1jii yUvita.
®Ji r If a manor be Granted , j tr. aut , vie ,
vfcfj'nd Cefiuy que vie dieth,and theGran-
% tfitfeee continucth fiill in the manor , and
iGrint naketh Grants by copy , thefe (hall
binde the Grantor of the manor;
»«r:>r immediately upon the death of
que vie, the Grantee was but
Tenant at fufferance, and had no
ojijlffianoroflawfullintereft , fora Writ
||. oik Entry , ad terminum qui freteriit,
Acaji“th againft him , as again!! Defor-
DvedBg*f° r -
iu, mi* And !b if a Tenant for life ofa ma-
oughchs w maketh a Leale for yeares of the
j juftotli-ne manor and dyech ; Copy hold e-
.ftnind ^ e * granted by the leflee , after the
K tJ^- at h ofthe Tenant for life, are void*
in j S ato/; I e hy the firft leflor.
.^Jorirlf a leflee for year s of a manor
tar Ha grai>*
(IOC)
grantech a copyhold in Reverfion,
and before the reverfion eichue, the
ternie is expired , the Grant is void;
and fo I take the 1 aw to be, if the Left
fee furrendreth hi« terme , and then
beforehisleafe fhou d have ended in
point of limitation,R c verfion falleth,
yet the Grantee lhall not havei .
Ifa Le.ife be made for yecres ofi
Manor , the leafe to be void upontho
breach of a certaine condi ion , if the
condition be broken , and afierwardi
the leU-e before the entry of the let
for, granteth eftates by copy; theft
Grants (hall never exclude tnefc'flor;
for prelently upon the breach of the
Condition • the leafe is void, but had
the Manor been granted for life, it
Tayleor in Fee, Iihink law would
have fallen out otherwife , for before
entry, the Frank-Tenement had no!
been avoided, and wherefoeveri
man may enter and avoid any eliated
Frank-tenement , upon the breached
a condition, the law adjudgetlm
thing to be in him before entry , and
he may waive the advantage which!*
might take by the breach of the coo
dition if he will , and therefore nd
i
lit
kt
hit
<u.
tic
Gr;
oft
ec
Gi
bit
ao 1
*
4
ffiK
to
orol
iaV
m
tur
If
for
of I
Co,
m
to
tei
$
toft
pita
dinR
don ii
leGu
term, n
RcTetiooii
IJnoth'ti
deftitja
be void ^
cdi iii,
i, and k
ffltry#:
iMfriW'
lUilK
wife, I*
'mKHit
d wbatfo
a rffaf*
pH.00
ijJjaikc
fctennj'
uagewfc
ach oftfe
(101)
witbftanding the accruer of the title
ofcfee Grantor : yet before this title
be executed by emry, the Grantee
hath iiach a lawfull intereft, that whac
-eltate (oever he granteth by Copy, in
the interim ihal hand good againit the
Grancor. And fo if an Inianc infe.
offe me of a Manor , though he may
enter upon me at his pleafure, yet
Grants made by me, by copy, before
his entry; fhall never be defeated by
any fubfequenc entry.
And the fame Law is of Grants
made by a Villaine purchafer of a
Manor* before the entry of the Lord,
or of Grants nude after an alienation
in Mortmayne, before the Lord Para-
mount hath entered for a forfei-
ture.
If a Par/on after Inftitution, and be-
fore induftion,a Manor being parcell
of his Gleab Lands , grants Lands by
Copy, and after is jndufted : this ad-
mitting of the Copyholders, is no
binding aft, for though, as to the fpi-
rkualties.he be a compleate Parfon,
prefently upon the inltitut ion, yet as
to the temporalities, heeis notconi-
pleate before Induftion. So ifa Par-
Hj fon
Cnbe admitted, inftituted and ind li-
fted, but doth not fub'cribe to the
-Articles, according to the Statute of
13. E Hz. and granteth Lands by Co-
py, as before : This Grant (hall not
conclude the fucceeding Incumbent,
becaufe his Admiflion, Inftitution,
and indu&ion, were wholly voide in
themlelves; but had the Parfon been
deprived for crime or herelie, or for
being nieere Laictu, although he be
declared by fcntence, to be uncapable
of a Benefice ; and fo his prelentment,
voide ( ab initio ) yet becaufe the
Church was once full, untill the<£n-
tence declaratory came ; for though
the deprivation fhall relate to fome
pu r poles , yet becaufe the; Prefent-
ment, is not in it felfe voide, furely
a relation fhall never be lb much fa-
voured , as to avoide a Copyhold
eftate in this kinde/
So much of Grants made by the
Lords chemlclves. In Grants made
by Copyholders, as the LawrelpeS-
e.hthe quality of the Copyholders
eftate, lo doth it relpeft both the qua-
lity ofhisperfon, andquantitieof his
eftate.
r
fcv
Lan
wit
an}
bin
fib!;
and
nai
en
i°:
Ct
mj
Co.
P
If
niii
ten
mi
lifi
S
a(
ini
Gn
til
y
thl
I
The
) (to?)
ate, ini The quality of perfon ; for tvho-
iklcti ti foever is uncapable of difpofing of
itheSta Land at the Common Law, cannot
1 Lmfc without fpeciall Cuftome,paffe away
Jrail any Copyhold. The quantitie of
115 ta his eftatejfor no Copyholder can pot
o, in fibly pafle away more than is in him j
?UjH and therefore, if there be joynt Te-
tbcPrttii nants of a Copyhold, one cannot ali-
littrft,* ene the whole. But if there be two
alibtcp) joynt Tenants ot a Manor, and a
tokiB Copyholder efcbeateth , one of them
ijttb} may grant this Copyhold, and his
fa g Companion /hall never avoide any
rfd part ofit.
.talk If a Copyholder for life (the re-
t\ate t) mainder over in Fee to a ftranger)/ur-
jj ^ renderethinFee, and the Lord ad-
mits accordingly, yet an eftate foe
be la ik life onely pafleth.
e 1 Core So if the Lord of a Manor granteth
a Copyhold for life, where an eftate
jjjJj bj in Fee is warrantable , and the fame
iSim Grantee furrenders in F ee, to the ufe
.jjgtfn afaftrajiger; and the Lord admits
Lyboli hivn$fecundnm officiumfurjum rtdditio-
iotli the? ”^I think no F ee pafleth.for though
antitieft' Lord s admit tance may , prims f a-
feetne to amount to a conlirruati-
J H 4 OB
(4O4)
on of the e ftate fiir rendered ; the R e-
verfion retting in him to difpofe of,
according to the Cult on le • as where
aLeffee foryeeres, at the Common
Law, nnketh a f toffment in F ec,and
maketh a Letter of Attorney to his
Leflor, to deliver Livery and feifin,
who executeth it accordingly, though
the Leflor be uftd as an inftrumetit to
perforriiethe will of the Leflee ; yet
this being his voluntary aft, the Law
takethitas a confent for the palling a-
way of the whole inheritance ; but if
you look narrowly into both Cafes,
you fhall finde the difference tor/tc
LarcerCafe, by the Feoffment, the
Fee is devetted out of the Leffor$ and
therefore a content will lerve to tranf-
ferrethe R ever lion 9 but in the for-
mer Cafe,the Reverfion is not pluckt
out ofthe Lord, by the Surrender,
and therefore an implied con lent is
too weake to remove it. I will onely
adde one obfervation more, and (a 1
will end with the Grantor-
The Law is not (o ftrift to a Co-
pyholder, as that he mutt come per-
fonaily intoGouft, upon making of
-very Surrender , but they may Sur-
ren-
uidt
fan
W'
the
niff
Cof
llD?
fe
A
ha:
Cc
tk
ney
fo.
cat
serf
tttt!
tit
an
yet
fpe
ex-.
for
tk
date
lisde
ftp
ties.
render by Attorney, as well as Live.
0 ®F( ry and Seiiin may be made by A ttor-
“i * f ney at the Common Law; and Qjould
® the Law be ocher wile, great inconve-
winFi niencie would emue; for how Ihould
:0,I *P Copy holders thac are in prifon, or
ryandis languilhing upon bed, or beyond the
Mlk Seas, furrender, but by Attorney.
As But note this difference, if a man
*IA| hath a bare Authority joynedwith a
lift, tkl Confidence without intereft,this Au-
ftkjafil thority cannot be executed by Attor-
Bfictj 9 ney. and therefore If I devi/e, chat my
WO Executors /hail /til my Land, they
mb cannot dell it by Aciorney, for that
Sum, were to make an Attorney upon At-
:1A tomey, which the Law will in no
button wife permir ; and though a man have
nimbi an Authority joyned with an intereft,
isnttjh yet if the Authoritie be warranted by
, Surrtt fpeciall cuftome onely , it cannot be
*1 D»ifc executed by an Attorney : and there-
into fore if there be a fpeciall Cuftome,
that a Copyholder for life may make
ii eftate,for 20 . yeers to continue after
}( 9 i C his death , thefe eftates cannot be
| (0Ilie |i made by Attorney. So if there
nukios a fpeciall Cuftome, that an Infant at
ynttyi tFie a ge ofdifcretion may furrender a
n , Co-
CioO
Copyhold 5 this Surrender being
confirmed by fpeciall Cuftome onely,
cannot be made by Attorney. And
fo if there be a cuftome , that a Copy-
holder out of the Court may furren-
der into the hands of the Lord, by the
hands of two Cuftomary Tenants,
fuch Surrenders muft be done in per-
fon.
But wherefoever there is a gene-
rall Authoritie, accompanied with an
intereft,thatAuthoricie may be exe-
cuted by Attorney , as Cefiuj qut ufi,
after the Statute of r.A.5. and before
the Statute 27. H. 8. might have ato-
ned by Attorney 5 for at that time he
had an abfolute Authority to difpofe
of the Land at his plealure , without
any confidence repofed in him. And
thus much of the Grantor 5 A word
of the Grantee.
nJct»
ft0Kr t
irnej.f
thiciCi
(10 7 )
Sec. XXXV.
mjc '"T^He lame perlons that are capable
1 of a Grant by the Common
“J I* Law, are capable of a Grant by Copy,
:im according to the Cuftome of the Ma-
nor.
rciiift An Infant, a man of non fata memo-
Kite rw; anldeot, a Lunatique, an Out-
wit law, or an Excomunicate, may be
(fin f Grantees of a Copyhold ell ate.
wi h The Lord himfelfe may take a Co-
py hold to his owne ufe,one /oynt Te-
fltut nant may receive a Copyhold from
| to If the hands of his joynt companion,
■e, wife bccaufe it pafleth by Surrender, not
l hill I by Livery.
fj 1 1 A feme covert may be a purcbafer
of Copyhold, and this purchale /hall
Hand in force , untill her Husband
difrgreeth. Nay, further, a/eme co-
vert may receive a Copyhold ellate
by lurrender from her husband, be-
caule Ihe commeth not in immediate-
ly by him, buc by mediate meanes,
(j, ( ®<>»by the admittance of the Lord
according to the Surrender.
As
(.o8)
As the feme is capable of receiving jj{
a Copyhold from the hands of the ^
Baron; IbbylpeciallCuftome, die c
Baron may take a Copyhold from ^
the hands of his Feme , tor in f .me j t
Manors, cultomes do enable the Feme q
to devife a Copyhold to the Baron, ,,
but this cullome hath been much im-
pugned, therefore I dare not juftifie ,
the validity of it.
What perfons foever are capable
ef a Grant by Copy, may well take by
Attorney, not that the Lord fhall be <.
enforced to admit any one by Attor- ^
nev, becaufe upon every admittance, ^
there is fealty due by the party ad- (£l
mi t ted , which is a duty lo inleparably ^
annexed to the perfons, that it cannot
be difeharged by deputy , and there- j j
fore no reafon the Lord Ihould be en- ; t
forced to ad mit by Attorney, but if
he will adroit him , it ltandeih
good.
Itisnotneceffary, that upon Sur- .
renders of Copyholds, the name of ^
the partie to whole u(e the Surrender £
is made , be precilely let down ; but
if by any manner of circumftance,the
Grantee maybe certainly known, it
is
ofttfy
umti*
'OltojK'
pyboldi
tor ig/t
iblctkv
tklm
anh'i
: not jia
lift®
[ttelltiki
wdM'
by k
tare
,ptji
wfejMl
naittti
andihs
louWfe
ney, tt
it ini
up in
swiHe o
Swrendt
m\ k
$&$
iioisii)’
ii
(top)
is fuffic icnt. And therefore a Surren-
der made to the Lord Archbitbop of
Canterbury, or the Lord Major of
London, or the high Sheriffs of A hr-
without mentioning,! ither their
Chriltian-name , or Sir-name , are
good enough , and certaine enough,
becaufe they are certainly known by
this name, without further addition.
So it I Surrender to the ufe of the
next of my blood , to the ufe of my
wife, to the ufe of nty brother or
fitter, having but one brother, or one
fitter, thefe Surrenders are good with-
out any additions .becaufe the Gran-
tee may certainely be knowne by
thefe words.
If I Surrender generally into the
hand . of the Lord, not expreding to
whofe ufe the Surrender thall be , this
Surrender is a good Surrender, and
fhall enure to the benefit of the
Lord.
If I Surrender to the ufe of my too
U . having more tonnes than one of
.that name, yet by an averment, this
incertainty may be helped.
Put if I fur render to the ufe of my
cofin,or my friend, this is to generall,
and
(no)
andfo intertable, that no fubfequent
manifeftation of ray intention can
any wayftrengthen it.
So if three Surrender, to the ufe of
threeorfoureof S r . Dmfloni Parifti,
not naming the Parilhioners by their
names, this Surrender is utterly
voide.
And { o ifl Surrender in the di£
junftion to the ufe of I.L. or I. N,
this is infufficient for the incertain-
ty-
And in cuftomary Grants upon
Surrenders, the Law is not Co ftri&,as
in Grants at the Common law, for in
Grants at the common Law , if the
Grantee be not in remm natura, and a-
ble to take by vcrtue of the Grant,
prefently upon the Grant made , it is
meerelyvoid. But in cuftomarie
Grants upon Surrenders, the law is
otherwile: for though at the time of
the Surrender, the Grantee is not in
eJJe,or not capable of a Surrender, yet
ifhebein ejfe and capable at the time
of the Admittance , that is fufficient ;
and therefore if I Surrender to the
ufe of him that (hall be heire to 7. S.
or to the ufe of I. S. next childe, or to
itW;
irstyit
is uralj
intkfi
,0(11
(bet®
mm
s,ion
i,tfk
#' 4 , 5(1 (
be Gna
iiade, iii
tbeliffc
is time «
t is not it
tit (to
Idem;
■to tbi
to U
Je,or»
ib
(ill)
the ufe of I. S. next wife ; though a*
the time of the Surrender J. S, had no
heire, childe, or wife : yet if after-
wards he hath a childe, or taketh a
Wife, his heire, his childe, or his wife
may come into the Court, and com-
pel! the Lord to admit according to
the Surrender. So ifl Surrender to
the ufe of him that (hall come next in-
to ‘Pauls after fuch an houre , whole
fortune foever it is to come firft, the
Lord muft admit, and I lhall never a-
voide it.
The feme law is, if I Surrender to
the ufe of him, that I S. lhall nomi-
nate, or that I my felfe ihall nomi-
nate to the Lord at the next meeting ;
the reafon of the law is this, a Surren-
der is a thing executory, which is exe-
cuted by the fubfequent Admittance,
and nothing at all is inverted in the
Grantee, before the Lord hath admit-
ted him according to the Surrender,
and therefore if at the time of the
Admittance the Grantee be in re-
rum natura, and able to take, that will
ferve.
BefidesinCurtomary Grants, the
intent of the Grantor is more refpe-
fited
fited than it fhould be by the ftrift
tales of the law , which appeareth
by this ; that if a (urrender be made of
aCopihold to the ufe ofalaft Will,
and the fur render devifeth it unto two
the one is admitted according to the
purport of the Will, this (hall inure
to both; but though the Surrender!
be a thing executory , and the intent
of the Grantor fo much favored: yet
if a Copiholder will Surrender to
the ufe of the right heires of I- S. be
being alive, this is void becaufe it can-
not take effeft according to the intent
of the Grantor; for he wouUfhave
the grant to be executed prefently,
which cannot be in regard that 1. S,
can ha^e no heire till after his death :
So much of the Grantee , and I come
now to the Grant it felfe.
Sec. XXXVI.
A Copyhold intereft cannot bee
S\ transferred by any other , aflii-
ranee then by copy of Courc R.ole,ac-
cordi ng to t he cuftome.
If I will exchange a copyhold with
another , I cannot doe it by an ordi-
nary
r i
Offff
taw
tie, ;
infj
If.
w d
law.bi
mjb
in m
tent.
' If
relea
vouh
kUc
(bfe
A
pyhol
deroi
theul
made
uitH.
dtno!
ibjifci nary exchange at the common Iaw»
lidnsft tut we muft furrcnder to each Other 9
idttbtea » and the Lord admit us accor
oiilfl dingly.
ah® If I wil 1 devife a Copihold I can-
cniti): not doe it by will at the common
thtilt law, but I muft Surrender to the ule of
thtijia my laft Will and Teftament , buc
aidaFt in my Will I muft declare my in-
lfjna. tenc -
$unt ft I am oufted by a Copyholder , a
•its dl releafe made to him is void,bccaQfeit
taufe would be a prejudice to the Lord, 8c
rotht: befides there is no ctiftomaryright up
sctoYi on which the releafe may inure , but a
:A pros eeleafe inuring by way of extingui-
adit' lb mg where no prejudice accrueth to
|y s j, the Lord, will ferve to drown a Co-
( dli pybold right, and therefore if I furren-
derout of Court upon condition, to
the ufe of I. S. and the preferment is
. made abfolute in Court , and the ad-
1 raittance framed accordingly, this ad-
mittance and preferment differing
, L .from the effefbof the Surrender, are c »
1 nliboch voide. Yet becaufe upon the
1 admittance the Lord is fatisfied of his
ld ( fine, and fo nothing at all prejudiced,
by aot anC * b ere a cuftomary rights
1 ir I upon
(fi4) 1
u poll which the releafe may be groun*
ded, I may by a releafe at the common
law, fumciendy confirmethisvoide
eftate. And (o upon the lame reafon
if I am oufted of a Copyhold, and the
Lord admit him according to the cu. ,
ftum,a releafe made by me at theconv
raonjlaw will extinguilh my right; j
but if I make a Ieafe for yearesofa ')
Copyhold, I cannot by my releafe j
pafle my Reverfion , becaufe this re* :
leafe injureth by way of inlargemenc j
to transferre an intereft, and not by j
way of extinguilhmenc, to drown a
right, buc my way is to fur render
my reverfion into the hands of the
Lord , and he to Grant it over to the
leflee.
Sec. XXXVII.
I F Copyhold land come into that
plight chat it cannot pafle byCopy,
it is become not alienable, and there-
fore if the Lord of a Manor will grant
to me a Copyhold in Fee, and after
will grant the inheritance of this Co-
pyhold to a ftranger , in regard that
now my Copyhold^is become no par*
cell
rv
“lift
kliiKfi)
yholid:
Kick):
Dytjit'
irate
}, dii
tok
;uow!
:onit i®
t, anil
t of tbiil
ow
cell of the Manor, and fo I cannot fur-
render into the hands of the Lord and
the Grantee of the inheritance, though
I am to him a tenant, andamtyedto
doe unto him all manner of fervices
which are due without keeping of
Court; as to pay Rent , to difcharge
Herriots and all other Duties of the
fame nature : yet becaafe the Grantee
cannot keep a Couft , and fo is inca-
pable of taking a Surrender , br hia-
k ing an admittance , therefore I cart-
not by any meanes alien 5 for no don-
veianceat thecomnion law will ferve,
becaufe it remaineth {till Copyhold
notwithftanding,and whatcuftoms fo-
ever were incident to the land before
Severance, doe remain (till undeftroy-
ed ; as if the land were Burrow Eng-
lifh, or Gavelkinde before, it fo con-
tinueth , and a decree in Chancery
will not ferve no more than an ordina-
ry dflu ranee at the common law- for Co.\. fa. *4.
that bindeth my per/on only , not my
intereft: fithence therefore Copyhold
eftates cannot be conveied away 0-
rherwife than by Copy of Court role,
according to thecuftome, let us exa-
mine the nature of thefe cuftomari*
1 2 grants,
Wal'
In (bine Grants a Surrender is Ef-
ficient without Preferment or Ad*
mittance.
Iniomean Admittance without a
Surrender or Preferment.
In fome a Surrrender and Admit-
tance, and both ncceilary 5 and in
lonie , a Surrender , Preiencmcnt,
and Admittance, are all requifite.
Sic. XXXVIII.
I F« Copiholder will Surrender to
the ufe of the Lord, theintereftof
the Copvhold is iufficiently veiled in
the Lord immediately upon the Sur-
render, without any admittance of
the Lord, becauie the Lord cannot ad-
mit himfelfe.
If the Lord will make a volun-
tary grant of a Copihold, no Sur-
render is requifite, for by the ad-
mittance
lilro
ifc
rod
dk it
mi
jam
rrfflk
tad
i tel®
mW
'a ff
BQOtt
(”7)
mittancc of the Lord according to
the cuftome, the Copyholder it
Sufficiently Setlcd in this land with-
out any other ceremony.
If a Copyholder will Surrender in
Court to the uie of a ftranger , befidcs
the Surrender, the Admittance is re*
quifite* and if the Surrender be made
out of Court into the hand* of the
LordhimSelf , 'which the generall cu-
ftome will warrant, or into the hands
ofthcBailiffe,or of two Tenant* of
the Manor, which by Special! cuftome
onelyis warantable, belides a Sur-
render, two other ceremonies are re-
quifite ; the one a true prelentment of
the Surrender in Court , by the Same
perSons into whole hands the Surren-
der was made $ the other is an Admit-
tance of the Lord, according to the
effeft and tenor both of the Surren-
der and presentment.
But now more particularly of eve-
ry one of them apart , and firft of a
Surrender.
i win
no Si
dr*
I?
Sec.
( uB )
SEC. XXXIX.
His word Surrender, is vocalu -
him art U , and therefore where a
Surrender is needfull , if this one
word be wanting , all other words,
ufedin ordinary cpveiances, are unef-
fe&uall and infufticient to convey any
Copyhold ettare , for if a Copyhol-
der come into Court, and offer to
pafle his Copyhold by word of
grant, of gift, ofbargaine, or (ale,
or fuch like, I doubt he will faile of
his purpofc, for as he is tyed to a lin-
gular forme of aflurance,(o is he re-
trained to peculiar words in his aP
aflurance.
Surrenders are made in (everall
forts according to the feverall cu-
tomes of Manors.
In fome Manors , where a Copy-
holder furrendereth his Copyhold,
he ufeth to hold a little rod in his
hand, which he delivereth to the Ste-
ward or BaylifFe, according to the
Cutome of the Manor, to deliver it
over to the party,- to whole ufe the
Surrender was made in the name of
Seifin,
r
(** 9 )
Seifin,and from thence they are called
Tenants by the Verge.
In lonie Mannors , in Head of a
wand, aftrawisufed, and in other
® Manors a glove is ufed, Et conjuetudo
11 ® loci femper eft obfervanda.
A Surrender ( where by a/ubfe-
» quent Admittance the Grant istore-
ceive his perfe&ion and confirmati-
Jp on ) is rather a nuniftfting of the
ife Grantors intention than of palling
mil away any intereft in the pofleflion :
oft for till Admitance, the Lord taketh
ailt notice ofthe Grantor as Tenant, and
j* he /hall receive the profits of the Land
to to his owne ufe , and lhall difcharge
.fc all Services due to the Lord , but yet
the intereft is in him , but ficundum
fa. quid, and not ab/olutely; for he cannot
min pafle away the Land to any other , or
makeitfubjeft to any other incum-
i Co: brance than it was fubjeft to at the
pjlol time ofthe Surrender , neither in the
is li Grantee is any manner of intereft in-
faSt vefted before admittance ; for if hee
to i! enter, he is a trefpailer , and punilh-
iveri ableintre/pafle ; and if he furrender
ifei to the ufe of another, this Surrender
jiRO ismeerely voide, and by no matter.
Safe I 4 (x
(iao)
ex pefi fatio can be confirmed ; for
though the firft Surrender be execu-
ted before the fecond ; fo that at the
time of the Admittance of him , to
whole ufe the fecond Surrender was
made,his Surrederer hath a fufficient
intereft as abfolute owner ; yet be-
caufe at the time of the Surrender, he
had but a poflibilicy of an intereft;
therefore the fubfequent admittance,
cannot make this Aft good , which
was void ab initio : but though the
Grantee hath but a poflibilitie upon
the Surrender , yet this is fuch a
poflibility, as is accompanied with a
certainty, for the Grantee cannot
poflibly be deluded , or defrauded of
the efifeft ofhis Surrender , and the
fruits ofhis Grantee : for if the Lord
refufc to admit him , he is compella-
ble to doe it by a Sub pena in the
Chancery , and the Grantors hands
are ever bound from the difpofing of
the Land any other way, and his
mouth ever flopped from revoa king,
or countermanding his Surrender,
Butperadventure , if a Copyholder
languifhing in extremity. Surrende-
red! out of Court, to the ufe of his
Co-
r\
(A
;;ic
con!
bes
ren
mac
! diC
me
I Cc
rer
I k
I wo
i
ma
dia
fpe.
vil
Cot,
k
Mi;
I0tk:
dffll
(ill)
fei Cofin, in confideration of confangai-
> nitie.orto the ufe of his fonne , i n
confideration of na tar all love and af«
s feftion , and after , recovereth his
« health before preferment , thisSur-
it render is recoverable , or counter-
in'! mandable : but if it be granted upon
k;, valuable confideration ; as for the
b difeharge of debts , or for a furame of
iji money paid, though it be made out of
i Court, yet it is as binding as any Sur-
$■ render whatfbever made in Court.
it And thus much of a Surrender ; a
lip word of a Prefentment.
Rt
Qt
uji S E C. X ]L.
ml:
kfc Tf' He Prefentment by the generall
mpt J- Cuftomes of Manors, isto be
lir *nade at the next Court day, imme-
ik diately after the furrender: but by
k fp^ciall Cuftome , in fome places , it
ml ! ferve at the fecond or third
Iji Court. And it is to be made by the
::i perfbns that took the furrender,
d and in a11 points material!, according
jo the true Tenure of the Surrender,
oft And therefore if the Surrender be
0 con-
conditional!, and the Preientment be
aWolute,both the Surrender, Prefer-
ment and Admittance thereupon are
wholly voide.
But if the Conditional! Surrender
be prefented , and the Steward in en-
triugofit, omitteth the Condition;
yet upon diffident proofe made in
Court, the Surrender fliall not be a-
voided , but the Roll amended , and
this lhall be no conclufion to the par-
tie, to plead or give in evidence of the
truth of themiatter.
If I forrender out of Court, and die
before Preientment ; if Preientment
be made after my death, according to
theCuftome, thisisfufficient; lo if
hee, to whole ufe the Surrender is
made, dieth before Preientment, yet
upon Preientment made after his
death, according to the Cuftome,
his Heire lhall be admitted : and lo, if
I Surrender out of Court, to the ufe
of one for life, the Rendrour, and
the Leflee for life dieth before Pre-
ientment , yet upon Preientment
made, he in the remainder lhall be
admitted. And fo, if I Surrender
to two joyntly, and one dieth before
to
ex!
loot!
nd
i®
Ad
A
h
i,
( 12 ?)
Prefentment, the other (hall be admit-
ted to the whole. The lame law is
f. if thole into whofe h ands the Surren-
der is made, die before Prefentment,
tei upon fufficient proofe in Court , that
liich a Surrender was made , the
Jte Lord (hall be compelled to admit ac-
«i cordingly ; and if the Steward, the
k« Bailiffe, or the Tenants, into whole
M;, hands the Surrender is made , refule
oik; to prelent, upon a Petition , or a Bill
«tt exhibited in the Lords Court; the
party grieved /hall Hade remedy. But
r,jii if the Lord will not doe him right , he
k may both fue the Lord, and them that
tfe took the Surrender, in the Chancery,
ffiji and fhall there finde reliefe. Thus
rat much of Prefentments. A word of
Bn, Admittance,
air
* Sec. XU.
»lStl
nr, i A Dmitrances are threefold:
rt Pi -ex. i. An Admittance upon a vo»
D tar luntaryGranr.
sail 2 * An Admittance upon Surren-
tcai der.
bffe 3. An Admittance upon a Dilcent.
In
( 124 )
In voluntary admittances the Lord
isaninftrumentj for though it is in
his power to keep the land in his own
hand; or to difpole of it at his pleafure
and to that intent maybe reputed as
abfolute owner , yet becaufe in
difpofing of it , he is bound to ob-
ftrve the Cuftome precisely in every
point , and can neither in Eftate nor
Tenure bring in any aleration, in this
refpeft the law accounts him Cu-
domes inftrument. Ifthc Cuftome
doth warrant an eftate onely, Vttranu
viihitau , and the Lord admits for
Life } this (hall not binde his heire or
iiicceflor , becaufe cuftome hath not
fufficiently confirmed it. So if the
Lordfaile in referving vtmm&untu
(fnum rtdditum - as if he refetvethten
(hillings, where the ufuall rent cufto-
mably referved, is twenty (hillings:
this may be a meanes to avoid the ad-
mittance, and the law is very ftrift
in this point of refervationtfor though
the ancient accuftomable rent be re-
ferred according to the quantity ; yet
if the quality of the rent be altered,
the heire may avoid this Grant : for
if the ancient rent from time to time
t hath
n.
f »«
Id
the!
m
inJc
I- hath been twenty (hillings in Gold,
^ & the Lord referveth it in Silver, this
I variance of the quality of therent is in
; force to deftroy the Grant : (b if the
; ' ancient rent hath been accuftomably
(j, paid at foure Feafts in the y ear e, and
n5 , the Lord relerveth it at two Feafts.
So, if two Copyholds Elcheate to the
.i Lord, the one of which hath been 0*
Uj* dually demifed for twenty (hillings
‘j-. rent, the other for tenne (hillings
.p ; rent, and he granteth them both by
^ one Copy, for one rent of thirty (hit-
^ ling, this is not good 5 andfoifaco-
y pihold of three acres Efcheates, which
^ hath been ever granted for three (hil-
* lings rent , and the Lord granteth one
Acre, and rderveth pro rata , one (hil-
' lings rent, verut & antiqtttu rtddit , is
“• not referved : but if a Copyhold of
.. , fix Acres, which hath ever been demi-
11 led for fix (hillings rent,Efcheateth to
T lWo Copartners, and one granteth
' three Acres,referving three (hillings
1 prorata , this is a perfeft rderving.
k ^ dmittances u P°n Surrender,
the Lord to no intent is reputed as
: owner, but wholly as an inftrnnicnt,
V and “e party admitted , (hall be fub-
jeft
0. 1. 140. b *
(1 26)
eo no other charges or incobrances of
the Lord, for he claimes his eftate un-
der the party that made the furrender:
and in the plaint , in the natureof a ,
Writ of entry in the per , it (hall be
fuppofed in the per by him, not by the
Lord 5 and as in admittances upon
furrenders; Co in admittances upon
difcents , the Lord is ufed as a meer
inftrumenc , and no manner of intereff
pafle th out of him , and therefore, nei-
ther in the one nor in the other, is any
relpeft had unto the quality of his e-
ftate in the Manor : for whether he (
hath it by right , or by wrong itisnot
material! , thefe admittances (hall ne-
ver be called in queftion for the
Lords title, becaufe they ate judicial!
afts, which every Lord is enjoyned
to execute.
Befides in admittances upon Sur-
renders, the Lord being accounted
nothing but a nect flary inftrument, it
followeth that he hath a bare Cufto*
mary power to admit , fecttndumfer-
mam & ejft&um f’urfum reddendi: there-
fore if there be any variance betwene
the Admittance and Surrender either
in the perlon, in the eftate, or in the
tenure*
( 137 )
tenure } or in any other collateral!
points , the Lord doth only transferee
aneftate according to the Surrender
and his authority if it can take fiich
enter. As if I Surrender to the ufe
of/. S. and the Lord admits 7. N. this
admittance is wholly void • and not-
withftanding this admittance the Lord
may after ward s admit J. «£. according
to the efleft of his authority : but had
he admitted /. S. and /. N. joyntly,
then the admittance had been void for
the one, and good for the other, like
the Cafe ofa Devife • where a Devife
ofa terme is made to 7. £ and the
executors agree, that /. S. and /. N.
mail have this terme ; this con lent is c< >4 fid
void to 7. N. for after the content of
the Executor, 7. N. is in by the De-
vife. Yet fomeare ofopinion, that
if I furrender to the ufe of IS. in Fee
L ,j r l admits 1 S - together
with his eldeftfonne andheire appa-
rent, that this is an eftate by Eftoppelf
to 7. S. and chache fhall only claime
jointly with his fbnne , becaute hee
tn;ght have refuted an admittance in
this manner '; but I can hardly be
fought, to think that this admittance
giving
giving a prefent intereft in the fbnnc ,
who by fiirrender was’,to haVe nointe-
reft till the death of his father , fliould
be any foch eftopell.
If . I Surrender to the ufeof I. S. for
life, andthe Lord admits himinFee,
an eftate for life onely pafleth. So if
I farrender without mentioning any
certaine eftate, becauie by implication
of the law, eftate for life only pafleth,
though the Lord admit in Fee , no
more doth pafle, than the implication
of law will warrant. If I Surrender
with the refervation of a rent, and the
Lord admits not,referving any rent, or
refervingalefle rent than I referved
upon the forrender,this admittance is
wholly void: but if the Lord referveth
a greater rent, then is the refervation
void, onely for the fiirplufage,and the
admittance fb far currant as it agreeth
wichmyfurrender, Iflfurrcnder up-
on Condition, and the Lord omitsjthe
Condition, the admittance is wholly
void; but if my (hrrender be abfblute,
and the Lords admittance be conditi-
onal!, die Condition is void , but the
admittance inall points elfe is good.
The realbns of tbefe diverfities
ti
rat
ad'
effe
voit
life
limit
that
■ bis
: Dpc
I tan<
Adi
I thin
: kk
* Inta:
! nn:e
m
deat
tent;
bee:
plait
Lora
1c is
b
W4.
tijer !
m
( 129 )
*; arethefe, where an Anthoride isgi-i
* ven to any one to execute any Aft,
ini and he executeth it contrary to the
effeft of his authority, this is utterly
tt voide; but if he executeth his autho-
ricie, and withall goeth beyond the
W limits of his warrant , this is voide for
st that part only , wherein he exceedeth
® his authoritie. Thefc Admittances
&. upon Surrender, differ from Admit-
*ii tances upon Difcents in this ; that in
is Admittances upon Surrender, no-
un: thing is vefted in the Grantee before
mi: Admittance,no more tha n in the Vo*
» luntary Admittances 5 but in admir-
At tances upon Difcents, the heire is Te-
lii: nant by Copy immediately upon the
t death of his Anceftor , not to all in*
nt tents and purpofes; for peradventure
jnl: he cannot be fworne of the homage
ip before, neither can he maintaine a
plaint in the nature of an Aflize in the
ufo; Lords Court before, becaufe till then
U he is not compleate Tenant to the
>lut Lord, no further forth then the Lord
mli: pleafech to allow him for his Tenant,
itii And therefore , if there be Grandfa-
ood l her, Father, and Sonne } and the
rii Grandfather is admitted , and dyeth,
* K the
(i 30 )
she Father entreth, anddyeth before
admittance, the Sonne (hall have a
plaint in the nature of a Writ of Ay-
ell, and not an Alfize of Mon d' «nn-
cefitr, Co that to all intents and pur-
poles, the Heire, till Admittance, is
not compleat Tenant; yet to moll in-
tents, efpeciallyas to ftrangers, the
Lawtaketb notice of him, as of a
CoAfi.i}. perfe& Tenant of the land inftantly
upon the death of his Aunceftor, for
he may enter into the Land; before
Admittance, take the profits , punifti
any trelpafie done upon the ground, i
Surrender into the hands of tbs Lord, '
to whole ufe he pleafeth,fatisfying the
Lord his fine , due upon the Difcent,
and by eftoppell, heenny prejudice
himldfe of his inheritance, for if an
Eftrangecome and Surrender to the
ulc of him and his Wife, before Ad-
mittance, he (hall ever claimejoynt*
ly with his Wife , and never betaken
aslbleTenant, and the Lord may a- .
vow upon him before admittance, for '
any arerrages ofRent, or other Ser-
vices : and laft of all, upon an aftuall
Ct.4f0.nJ>' poflelfion there (hall be pojjiffio fm-
trit y before admittance , for if a Co*
py-
fl
it
9L
1
t
I)
II
I
(
t
n
C
to
tt
ft
o
f
tl
a
tt
eoi
tor
mi
h
der
pyholder in Fee have iflue, a Sonne
and a Daughter by one Venter, and
a Sonne by another Venter, anddyech
ftifed , and his Sonne by the firft Ven-
ter, entreth into the Land , and dyeth
before Admittance, the Daughter
fliall inherit, as Heire to her brother}
and not the Sonne by the lecond Ven-
ter, as Heire to his Father : and ma-
ny times the pofleflion of a Guardian,
or a Tearmer, without an a&uall en-
try, or any claime made by the Heire,
will make a pojfejjia fratrii. As if g
Copyholder in Fee, having iflue, a
Sonneor a Daughter, by one Venter,
and a Sonne by another Venter ; by
licence of the Lord , maketh a Leafc
for yeers , and dyeth , and the Sonne
of the firft Venter dyeth , before the
expiration of the Terme, being nei-
ther admitted , nor having made any
a&uall entry, or any claime. Yet
this pofleflion of the LefTee is fuffici-
ent, and the Reverfion (hall dilcend
to the Daughter of the firft Venter,
and not to the Sonne of the fecond
Venter. But if the Leafe had beene
determined, the Sonne living, by the
firft Venter , and afterwards he had
K 2 dyed
^7
dycdbefore any aft u all entry made,
the Law would have fallen out o-
therwife, becaufe there was a time,
when he might have lawfully entered;
therefore, where fbme have imagined
that nothing fhould be invefted in the
Heire before Admittance; becaufe e-
very Admittance of an Heire, upon a
Difcent, amounteth to a grant, and fb
may be pleaded , they are in an error;
for though it be true, that after Ad-
mittance, the Heire may in pleading
alledge this as a Grant, and that hath
beene allowed, to avoide the inconve-
niences that otherwife (hould enfue;
For if the Copyholder (hould be dri-
ven in pleading , to (hew the firft
Grant, either that being made before
the memory of man, is not pleadable,
or fince the memory of man , and
then Cuftome failes , for this reafbn,
the law hath allowed a Copyholder,
in pleading to alledge any Admit-
tance afwell upon a Dilcenc , as upon
a Surrender, as a Grant : and yet he
may,ifhewill,alledge the admittance
of his Anceftors , as a Grant , and
fhew the Difcent to him, and that he
entred, and well, without any Admit-
tance;
r
(i33)
i, tancc; but the Heire cannot pleade
c> that his Anceftor was feiled in Fee,
^ at the will of the Lord , by Copy of
it®. Court R oil , of fuch a Manor , ac-
pj cording to the Cuftome of the Ma-
14. nor, and that he dyed feiled, and that
ife the Copyhold difeended upon him,
ip becaufe in truth foch an intereft is but
a particular intereft at will, in judge-
ictn ment of Law, although it be difeen-
taj; dable by Cuftome.
lat So that I conclude, that an admit-
)l( ij tance is principally for the benefit of
c a , the Lora, to intitle him to his Fyne,
and not much neceflary for ftrength-
^ n ing of the Heires title.
^ Then will lome fay, if the benefit
which the Heire (hall receive by
jjjj the Admittance, will not coun*
, j tervaile the charges of the Fyne,
1 ’j he will never come in.and take up his
ilioli Copyhold in Court , and fo defeate
^ the Lord of his Fine : I allure my felf,
r if it were in the eleftion of the Heire
J to be admitted, or not to be admitted,
;,,j- he would bebeft contented without
, f admittancc,but the Cuftome in every
'uj Manar is compullary in this point,
ij, either upon paine of forfeiture of
K 3 their
C I 34)
their Copyhold, or of incurring forae
great penalty, the Heires of Copy-
holders are inforced in every Manor
to come into Court, and be admitted
according to the Cuftome within a
[ho rt time after notice /given oftheir
Anceftorsdeceafe. And thus much
erf the Grant it felfe. A word of the
things granted.
Sec. XLII.
T Kings that lye not in Tenure,
are not Grantable by Copy.
As Rents, Bailiwickes , Steward-
Ihips, Common in grofle, Advow-
fions in grofle , and fuch like. AH
which are incorporate Heredita-
ments, and therefore no Rent can if.
fue out of them ; neither can they be
held by any manner of Service, but an
Advowlion appendant, a Common
appendant, or a Faire appendant
maypafleby Copy, by reafon of the
principall thing to which they are
appendant , and generally what
things foever areparcell of the Ma-
nor, and are of perpetuity, m^y be
granted by Copy, according to the
Cuftome, as Under-woous growing
' np-
(i35)
(fe upon the Manor,being things of con-
ffr tinuance ( for after they are cut, they
in will grow againe , ex fiipitibut ) way Co * '1°
Uk well be granted by Copy; and fo of
Uii herbage or any other profit of the
it Manor; andfomecimeof the Grant
lakh of a Copyhold, things lhall paffe that
are fevered from the Manor. As if
the Lord of a Manor grant his Manor
for yeers, except, bofc. & fubofc .grow-
ing in certaine Copyhold ground,and
1® the Leflee by his Steward granteth a
Of!' Copyhold, within which Manor there
m is a Cuftome, that every Copyholder
w may take within his Copyhold
(i Woods , and Under-woods, grow-
» in g u pon the ground for his neceflar y
teal fuel, notwithftanding this exception
ntyi in the Leafe of the Manor, the Copy-
> hit holder may cut downe the W oods or
out Underwoods, according to the Cu-
pob ftome, though by exception fevered,
i oft from the Manor, for though the Leflee
cj r of t he Manor, in refpeft of the excep-
t|i tion, could not meddle with the
thfc Woods or U under- woods , and Co
h it might feerne, prima facie, very pro-
10 ih bable that the Copyholder, comming
^ in by the voluntary admittance of
■» K 4 the
Cl 30
theLeflee , flio u 1 d 1 1 ave no more A a*
thority nor intereft then the Leflee
himfelfe had ; yet becaufe the Copy-
holder being once in by Cuftome,
and lb his title being grounded upon
cuftomeis paramount the exception*
Therefore, the exception' in theleale
of the Manor , though preceding the
Grant of the Copyhold, cannot any
way touch or prejudice the Copyhol-
der. And lo, if there be a Cuftome,
within a Manor that Copyholders
have tiled to have Common in the
Waftes of the Lord , and the Lord
granteth away feis Waftes , and after
granteth a Copyhold, the Copyhol-
der (hall have coramon,but in alledg-
ing the Cuftome , he ftiall not fay,
gUod infra Mantr.prtd. talis kabelur
conjuetudo. but thac till fuch a time,
viz.before the le verance,t<j/*f habtbu
tttr&toto tempore, &c. conjuetudo, nud
then fhew the feverance. If there be
an incertainty in the things granted,
the Grant is not therefore infuffici
ent ; for by the elettion of him that is
the firft agent, ’ic may be made certain.
As if [ grant by Copy , twenty loads
ofHalell , or twenty loads of Maple
in
to
' lt)|
id;
( 137 )
®Sr In the dif-junftive to be cut downe,
and taken by die Grantee in my Ma-
lta nor of Dale , there the Grantee hath Co.i-fau-*
ife eleftion to make choyce of which he Co 'W°‘ 17 '
dipt pleafeth, becaufe he is to perform the
•ft firft Aft of cutting down, and taking
®kt them , but if I am to cut them down ,
and deliver them to the Grantee, then
mini have I the eleftion, & obferve this dif-
opjlt ference touching this point of eleftiS.
i* If a Grant be made in the difejun-
iWs ftive of two annuall things, and things
1 ini of continuance ; if the eleftion belong
eU to the Grantor , and he faileth at the
ik day to make eleftion , yet his eleftion
ipj\i is not determined, but continued!
M the fame after the day , that it was
Btfc before the day , but otherwife it is,
i Mm where things are not annuall , but
1 ide are to be performed utiica vice tantum.
ink Therefore if the Lord of a Manor
iii t i gr anteth by copy, t wenty trees grow-
hit; ing upon Black acre, or White acre ,
mD. to be cut down yearly by himfelfe.and
fS to be delivered to theGrantee at fuch
tbatis a day, though the Grantor faile at his
naia day to make his eleftion , yethisele-
y ftion is not gone , becaufe the things
Miji granted are annuall , but bad thefe
3 trees
(138)
trees been to be delivered to the
Grantee once onely , and not yearly,
then by the failor of the Grantor at
the day , the ele&ion is devolved to
the Grantee.
Sec. XLIII.
A ND thus much of the thing
granted, a word of the Inftru-
ments, through whofe hands, as
through Conduit-pipes ,the lands are
gradatim , conveyed to the purchalor;
I will not Ipeak of thole men, that are
uled as Initruments by Ipeciall Cu-
ftome to prelent in Court, Surrenders
taken out of Court. Thele I have
lufficiently Ipoken of alrea ly. I will
here point only at thele perfons ; tbat
by the general! Cuftome of every Ma-
nor, are iro ployed as necefiarylnllru-
ments in Cuftomary admittances, and
will curfarily examine the extents of
their authorities, and the quality of
their offices.
The perlons I ayme at arc thele;
i The Lord.
2 The Steward.
3 The Under-Steward.
tl
, it
k
b
li-
fe
a
' ci
Ci
it
fa
Dig
h
P
D
(fc
S FC.
Sec. XLIV.
'T - ' 1 H E Lords Authority coa-
X fideth chiefely in thefe fours
thing.
i In punilhing offences, andmif-
demeanorSjCommicted within his pre«
kt< cinfts, as not performance of Cu-
btife domes, breach of by-lawes, notdift
mil,! charging of duties, and fuch like.
Wt 2 In deciding controverfies arifing
ftfe about the title of Copyhold land, ly-
tim ing within his bounds • and when he
tlGsr fitteth as Judge in Court , to end de-
teaio bates of this nature , he is not tied to
:1k the drift forme of the common law,
, ft for he is a Chancellor in his Court,
iDijili and may redrefle matters in Confci.
isyl ence upon Bill exhibited , where the
jlafc common law will afford go remedy
ces,£ in the fame kinde , as to infid in one
lots familiar example.
iijn Ifl Surrender a Copyhold to the
ule of a dranger, upon confidence,
c f t; that fuch debts being by medifehar-
ged , he fhall Surrender backe this
Copyhold ; I upon difcharge of the
debts demand a Surrender, and he re-
$[;■ fufeth.
(140) |
^ufeth , at the common law I were left
remedilefle, this being a bare confi- „
dence,andno Condition, but upon
Bill exhibited in! the Lords Court I t
(hall be relieved , for the Lord upon j
proofe of the matter may feize the j
Copyhold, and readmit me , accor- E
to the effeft of the Confidence. £
3 In admitting Copyhold. And \
in this Cuftomary power of admit- c
tance , the Lord doth (bmewhat out- r
ftrippethc Steward , for the Lord t
may make either admittances upon t
voluntary Grants, admittances upon J
Surrenders , admittances upofl dit
cents, in any place where hepleafeth
out of the Manor , but fb cannot the [
Steward : and in giving licence to {
Copy holders to aliene by deed , and r
in this point of licence , the Lords au-
thori cy doth exceed the Stewards au-
thority; for though fbme are of opi- j
nion, that it is both ufiiall and war- ,•
rantable ,for the Steward ofa Manor
in abfence ofhis Lord , to licence a j
Copyholder in foil Court to aliene by 4
Deed, for as many yeares as he (hall 1
think good, becaufe he is Jugde in the
Court; and befides, the entry of it in
the
wti
bid
liCotj
OK.
old. h
ofadar
an®
a ft
tit
fiii
rnz
ceneti
!fd] !S.
fh
m4t
reef®
nil!'
iM®
cence:
ienet
kIU
e in ill
pofti
it
(hO
the Court Role is in this manner. Ad
banc curiam. l.S. petit Licentiam Do-
mini dimitt endi) Cut Domintu li-
centiamdat , &c. and therefore this
licence being granted in the Lords
name in full Court , the Lord lhall
never enter for a forfeiture, but (hall
ever be eftopped, to fay the contrary,
but that he aid give licence , yet (un-
der reformation be it fpoken ) Imuft
miltruft the truth of this opinion ; for
this power of licenfing Copyholds to
alien by Deed, is not Cuftomary, for
then it were as proper to the Steward
as to the Lord $ but it is a power of
intereft annexed to the perlonofthe
Lord, in refpeft of his eftate in the
Manor, and not in any other Collate-
rall refpeft ; and therefore if the Ste-
ward having a bare authority to exe-
cute what the Cuftorreofthe Manor
doth warrant, fmt doubt , he cannot,
virtute officii , grant any unwarranta-
ble licence to aliene by deed, no more
than to commit wafte : for the one
aft , as well as the other , tendeth to
the breach of cuftome, and both of
them without a fufficient allowance,
amounts, to the forfeiture of a Copy-
hold, '
042 )
hold, but by exprefle words in the
Stewards Patent, or by Ipcciall au-
thority given him by the Lord , o r by
feme particular Cuftome warranting
the lame , the Steward may in
Court lawfully licence Copyhol-
ders , to aliene as well as the Lord
may. And thus much of the Lord.
Sec. XLV.
S Teward, is derived from thofe
two words, Stede and Ward} and
fo any that doth fiipply another* place
or that is in any imployment deputy
to another , may according to the
true fenfe of the word bee termed a
Steward, as the high Steward of Eng-
/rfsdjbecaufe the King appointech him
in divers matters to exercife his place :
and fo the under Sheri ffe may be ter-
med by the name of the Sheriffs Ste-
ward, being his Deputy, and how
properly the Lords Steward is lb na-
med, any man may judge by this, that
the whole authority of the Steward is
derived from the Lord, as from the
head ; & not only fb,but withall he re-
prefenteth the Lords perlon in many
(* 43 )
imployments, for in the lords ab«
fence he fitteth as Judge in Court to
punifil offences, determine contro-
verfies , redrefie in juries, and the like;
and further.fomethings he performed?
in the Lords name, and not in his own
name , for if the Steward admitteth
any Copyholder, or by fpeciall Au-
thority, or particular Cuftome, li-
cenceth a Copyholder to aliene , thi«
admittance and licence (hall be made
in the Lords name, and the entry in
the Court RoIe,ftaII b ^guodVttm-
ntv per Sene fc album admifit , & licentia-
vit , and not that the Steward did ad-
mit , or licence ; therefore iithence
the Steward hath this raealure of au-
thority and confidence commited un-
to him , the Lord (hall doe very well
to be very carefull in making choife
of his Steward; for if he bee defeftive
in any one of thefe three quali-
ties, Knowledge , Truft;, or Dili-
gence , the Lord may be much pre-
judiced and < damnified ; therefore
Fleta wifely giveth the Lord this
counfell.
7 ’rovideat fibi Daminut deSmfcaU
lo circttmjpttfo & fideli & pacifies &
(• 44 )
medefto , qui in legibut confuetudmihtj-
qtu frovincut Domini fid in omnibut
tueriaffeciet, quifqut Ballivot Domini
in fuU erroribut & ambiguii fciat in-
firnert & docert , quique tgtnU par-
cere, & me price vtl pretio velit a tr mi-
te jufiitia deviare & perverji jttdi-
eare.
Thefe Stewards for the moft part,
have Patents for their Offices , yet
they may be retained by Paroll , and
thisreteiner by Paroll,is as effeftuall
in all points before difeharge , as the
moft effeftuall inftitucion by Patent :
for a Steward thus retained, may take
Surrender out of Court , or make
voluntary Admittances, or any other
Aft incident to the office of a Ste-
ward , as well as a Steward inftitu-
ted by Patent. But in the Kings
Manors, a Steward cannot be retained
by Paroll by the mouth of the Audi-
Co4-fol 30. 4. tor or Receiver; but to make the
Stewards authoritie currant, elpe-
cially to make voluntary admittan-
ces; it is neceflary he have a Patent,
and then, by vertue of his Patent,
without any (peciall Authority , or
particular Cuftome, hee may juftifie
the
Co4-fo.$oJ>.
Kit
ten
thi
febt
Out*
ifer
Hit
tot
%
•iiilt
itfe
r
Iff
8
k
I
*
i
l
®i
Kl
of
i
lx
t
K*
ft !
?
id
i
»■
>
M
or
ii I
t
, (> 45 )
the making of any voluntary admit-
tance , upon Elcheates or forfeitures,
or the doing of any Aft belonging to
his Office ; but though he may Ex «/-
ficio, doe t hole things without {peer-
all warrant, yet dude bindes him be-
fore he make any voluntary admit-
tance to informe the Lord Treafurer
of England, the Chancellor, and Ba-
rons of the Exchequer , or any of
them for his better direction , and the
Kings better benefit •• the Law is not
very curious in examining the imper-
fections of the Stewards perfon; nor
the unlawfulnefle of his authorise,
for be he an Infant, or mm compos men-
tis , an Idiot , or Lunatique , an
Out-law, or an Excommunicatejyec
what things (oever he performed^ as
incident to his place, can never be a-
voidedfor any fuch difabilitie, be-
caufe he performeth them as a Judge,
or at lead as Cuttomes Inftrutnent ;
and for his authority, though it prove
but counterfeit, if it come to exaft
triall ; yet if in appearance or out-
ward ffiew , ic leemeth currant, that
is fufficient. As if I grant the Ste-
wardfliipofmy Manor of Dale by Pa-
L tent.
(1 40
lent, and in the Patentees abfenee, » $
ftranger by my appointment keepeth H
Court, this is authenticall. If a grant w
of a Ste wardfliip be made to one , and „
forfome fault or defeft in the Grant, ^
it is avoidable , yet Courts kept by
him before the avoidance, (hall (land ^
in force : and whatfoever he did as ^
Steward, are ever unavoidable. As if c f
a Corporation retaineth a Steward ot
by Pa roll, and hee keepeth a Court,
puniflieth offences , decideth contro-
verlies, taketh Surrenders, maketh f 0|
admittances , either upon Surrenders
or dKcents : the(e Afts being judiciall
(hall ever liand for currant , though
his authoritie be grounded upon a ^
wrong foundation; for a Corporati- ^
on cannot inftitute any (uch Officer, ^
without writing. Andfoifche Kings ^
Auditor or Receiver ,. retaine a aj( -
Steward by Paroll , he may lawfully ^
execute any ) udiciall Aft : but things
which he performeth, as Cultomes - ,
inftrument , not as Judge, (uch as are .1
voluntary admittances, neither in the '
retainer by the Corporation, or in 1
this retainer by the Kings Officers,
(hall any whit binde : but if a ftranger , '
with-
h
th,
at
i
4 )
ij
si
in
m
irci
4
r
i /
11
9 D
b,
] v
4 '
ii
Ei'
®
st
k
[if
4
*r
H
CHS)
without the appointment of the Lord,
orconfent of the right Steward, or
without any colour of authoritie,
will of his owne head, come into a
Manor, and keep a Court ; it feemeth
that the performance of any judiciafl
duty, or the executing of any aft
v/hatfoever will not be Warranted,
efpecially ifthe Court be kept with-
out warning given to the Bayliffe by
precept, according to theCuftome.
The Office of a Steward may be
forfeit three nianer of waves.
1 By Abufer.
2 By Nonujin
3 By Refufer.
By abnfer. As if the Steward
burne the Court Rolles, or if he
taketh a bribe to winke at any of*
fence , or ufe partiality in any
caule depending before him, thefe
and the like abufes will make him
lubjeft to a forfeiture.
By Nonnfe- s As if theStewerd by
his Patent, being eyed to keepe Court
atcertainetimesofthe yeere, with-
outrequeff to be made by the Lord
if he faileth , and by his failer , the
Lord receive any prejudice, this is a
L 2 for»
B
(i 4 8)
forfeiture. But if the Lord be not,
damnified , then this non ufir is no
forfeiture. As if a Parker attends
not for the fpace of three or foure
dayes, and no prejudice or damage
happeneth in the interim , this is no
forfeiture : and in Offices, which con-
cerne the adminiftration of Juftice, or
the Commonwealth, the Law is more
thrift then in the Offices which con-
cerne private men : for where an sffi -
ccr ex officio } or ofnecefliiie ought to
attend for the adminiftration of Ju-
ftice, or for the good of the Com-
monwealth, there Nonufer , or non
attender in Court , is a forfeiture,
though this be prejudicial! to no man,
as the office of the Chamberlaine in
the Exchequers Protonotary, Clark
of the Warrants, Exigentur Filizar, or
the like in the Common Pleas, be-
cause the attendance of thefe and the
like officers , is of ncceflicie for the
adminiftration of Juftice, (b tbe atten-
dance of the Clarke of the Market, is
of neceflity for the good of the Com-
mon wealth , and Co is holding of the
Sheri ffes turne,&c.
By Refufer, the office of a Steward
may
‘1
a
V
IK
Cc
fcit
no
/
fee
ritie
Id
spur
atf
filer
tSe
isf(
ty-
km
'(* 49 )
«, f may be thus forfeited, if the Steward
0 he tycd in his Patent to keepe Court
1 upon a demand or requeft, to be
if. -made by the Lord, if the Lord de-
f 1 mandeth or requefteth him to keep a
n> Court, andhefaileth ; this is a for-
#■ feiture, though the Lord be thereby
,« nothing damnifycd. And thus much of
ott the Steward.
»'
4 sec. xlvi.
:d
fc
t- > ’ T ’’He under Steward is the Ste-
«i J. wards deputy, and fometimes
t, appointed by writing , fometimes by
a, Paroll, and the extent of his Autho-
tia ritie, is as great as the Stewards own
Id Authorise, and his office confiftetU
if »n performance of the felfe fame du-
> that the high Steward himfelf
lii * s t0 perforate, onely in this point the
i power of the Steward goeth beyond
o ’ power of the under-fteward ; that
,t 1 the Steward can make an admittance
«• 1 put of Court, and it fhall Band good
lit if entry be made in the Court Roll,
that he that is admitted, hath paid his
ji fine, and hath done fealty ; but the un-
sj f L 3 der-
,
05 °)
der-Steward, though he may take a
Surrender out of the Court , yet he
cannot make any Admittance out of
Court, without efpeciall Authoritie
or particular Guftome.
Some have thought, that an under-
fteward may be made without fpeciall
words in the Stewards Patent, autho-
rizing him to make a Deputy : but
Purely, fince it is an office of know-
ledge, truft and difcretion, it cannot,
unltfleitbeifiCatesof necelfitie. As
if an office of Stewardfhip defcend
unco an Infant, hce may make a De-
puty , becaufe the Law prefumeth he
is himtelfe uncapable to eyxcute it, to
if it be granted to an Earle in refpeft
of th’ exility of the Office in a bate
Court, and of the dignitie of the per-
lon , who is Pupofitw Comitatuf , and
had in ancient time the charge and cu-
ftody of the whole ffiirc, whole atten-
dance the Law intendeth to be moft
neceflary upon the King and the
Common-wealth, therefore it is im-
plyedin Law for the com-eniencie,
that he may make a Deputy , for
whom he ought to anfwere. This is
one obfervaiion touching underfte-
wards,
A
infe
eiiit
050
wards, in admittances made by under-
ftewards, as well as in admittances
made by the Stewards themfelves, it is
good order to exprefle in the Copy,
and in the Court Roll , the name of
theunderlleward, or of the Steward,
becaufe in pleading any Admittance,
a man muft fay that he was admitted
by fuch a one underfleward or Ste-
ward , naming his name. And this
fhallfuffice touching the manner and
means of granting Copyholds: Suffer
me now in the fourth place , to point
at the feveral eftates of Copyholders,
together with their feverall qualities
incident to their feverall eftates.
Sec. XLVII.
A LI eftates whatfoever may be re-
duced to one of thele three
heads.
i Inheritance.
2 Francktenanr.
3 Chattells.
All Inheritances are of two forts,
either Fee fimples , or Fee cailes.
Of Fee fimples , fbme are de-
L 4 ter-
terminable , (onie are undetermi- fi|
noble. ik
Determinable , as where Land is ii
given to a man and his heires , for ot
fo long time as Pauls fteeple (hall m
(land. i
Undeterminable, as where Land i3
is given to a man and his heires, with- mi
out farther limitation. fa
Of Fee tailes , fome are general}, in
forue are fpeciall. lie
Generali, as where Land is given aft
to a man and the heires of his body, tit.
or heires males , or females of bis at/.
body. f<t
Speciall , as where Land is given are
to a man, and the heires , malesor fe- aw
males , which he (ball beget of fitch id
a woman. > if
All Franketenants are of two iici
forts, ei; her created by the aft of the hi
party, or by the aft of the Law- 11
Of Francketenants created by the aioo
aft of the party, fome are determina- ^
ble by death , fome by collateral] m
nteanes.
By death, as effaces granted during
the life of the Grantor, of the Gran- aj
tee, or of a Stranger. « ,
By
(> 53 )
By collaterall meanes , as eftates
granted quia din fuerit inmpta , to a
Widdow, quia (Uuremanferit vidua,
or to a Minifies? umdiu Sacerdotium
' txtrcuirit,
OfFrancke tenants created by the
aft of the Law, fome are Francketc-
matsfimplicitcr, fome ftcundum quid
fimphcitcr , as the eftates of a tenant
in Dower , of a tenant by the courte-
ne,of an occupant , a tenant in taile,
after pofibility of iflue extinnft , ft-
cundumquid , as the eftates of a Te-
) nanr by Statute Merchant, S/at, Sta-
ple & Elegit • who though they are to
have the Land, but for Co many yeeres
as will give a plenary fatisfaftion to
their debts, yet by theSfat. of Wtflm.
2. they may mainetaine an Alfize,
jtyhich no other Tenant having but a
Chattellcan have.
All Chattells are either certaine,
orincercaine: Of Chattells certaine,
fome are in themfelves certaine, forae
are made certaine by relation to a
certainty. Certaine in themfelves,
as where Lands are granted for 20.
30. or 40. yeers. Certaine by rela-
tion to a certainty, as where Land
is
» 5 *
Co.^.fa.n-
( 154 )
is granted for fo many yeares as I. S.
hath acres of Land.
Of incertaine Chattels , tome are
incertain in their commencement,
fome incertaine in their determina-
tion.
In their commencement , as where
a Guardian hath an eftate during the
minority of theheire , all thefe eftates
either by generall or by the particu-
lar cuftomes ofManors, are of Copy-
holds afwell as of Feeholds , in what
manner foever an eftate in Fee fimple
is warranted by the cuftome, moft in-
ferior eftates are by implication like-
wife warranted. All Frank tenants
created by the aft of the party , the *
eftate of an occupant , and all Chat- «
tells whatfoever, without any other ts
particular cuftome , are hereby war- f.
ranted. *!
But the law is otherwife , of eftares (a
in Dower by the curtefie , by Statute ni
Merchant , Statute Staple , or Elegir, m
for as long as fuch a Copyhold, by
the cuftome of the Manor grantable ..
in Fee fimple, continueth in the Go- ik
pyholders hands , it is notlyableto |
any of thefe eftates , but if once it j
com-
( 155 )
commcth to the Lord by Efcheatf ,
Forfeiture, orbyotbermeanes, Co
long as it remaineth reunited to the
Manor, it is in the nature of a Free-
hold , and /hall bee fubjeft to the
charges and incumbrances , as land at
the common law , and howfoever by
implication thele eftates are not al _
1 o wed i n Copy holds , contin uing in
t jie Copyhold pofleflion , yet by par-
ticular cuftome the Wife may be Te-
nant in Dower, the Husband Tenant
bythecurtefie, a Granger Tenant by
Statute Merchant, Statute Staple, or
Elegit, ofa Copyhold, refting in the
Copyhold , afwell as if it refted in
the Lord } whether an eftate tayle, or
an eftate tayle after poftibility ofilTue
extinft, which hath a neceffary de-
pending upon an eftate tayle, may by
any particular cuftome be allowed ,
that T maydilputejbut cannot deter-
mine ; for it is vexata qucJUo , much
controverted; but nothing concluded,
I will briefely touch the reafons al-
ledged on both fides. They which
are againft the validity of Intailes by
ipeciall cuftome , doe chiefely urge
thefe two realbns , that no eftates
tayles
(i$6)
tayles were before the Stat. de denis
condition dibits , but all Inheritances
were Fees condicionall , and the Sta-
tute being made 13. E. 1. which is <
within the memory of man , it cannot
be that any Cuftomes have any Com- 1
mencement, fince the Statute $ lor then
a cufiome might begin within time
of memory , which is altogether re-
pugnant to the rules ofcuftome.
Two great inconveniences would
enfiie , if a Copyholder might be In-
tailed by fpeciall cuftome, becaufe
neither fine nor common recovery /
can barreit; (b that he hath fuchan t
eftate^that he cannot of him(elfe 5 with- ji
out the aflent of the Lord , difpole of in
it, either for the payment of his debts* i[
for the advancement of his wife, or it
preferment of his yonger fonnes, ie
ii
Sec. XLVIII. J
l
T ' H E maine realbns in lifted upon
in defence of intayling Copy-
holds are thele. %
1 In divers Manors they have been D ,
from time to time , not only reputed (1 |
as
C 1 57 )
at Tenants in tayle , but in every
mouth termed by that name.
2 A Formedon in the Dejmdtr Jy-
eth of a Copyholder, which Writ
> none can bring but Tenant in
tayle.
3 A remainder limitted upon fuch
an efface in fuch Manors hath been al-
lowed , and therefore is no Fee con-
dicionall ; for upon a Fee, whether
abfolute or conditional!, a render can
by no meanes depend.
4 It is a common ufige there by a
Recovery to dock intailes of Copy-
hold , or to defeate thefe eftates by
prefentment , that the Copyholder
hath committed a forfeiture, andfo
the Lord to feize , and to furrender
it to the purchafer ; and therefore
there is not that inconvenience which
is fuppofed in the Copyhold , fcilicet ,
want of power to difpofe of fuch an
eftate without the Lords confent.
$ Much inconvenience would de-
pend upon this if Copyholds might
not be intayled , for it would tend to
# the fubverfion and deftruftion of ma-
ny mens eftates •, which from time to
time they have enjoyed without con-
tradiction.
(i 58)
tradiftion,and therefore for the quiet
of the common wealth how neccflary
it is that Copyholds (hould be incay-
led, let any man judge.
Thus much of the feverall eftates
of the Copyhold. A word of the fe.
verall qualities incident to feverall
eftates.
Sec. XLIX.
T "TTHat qualities foever are nccef-
V V fariiy incident to eftates at the
common law, are incident to eftates by
cuftome. Inillaftrating this, I will
confine my (elfe to the difcufling of ‘
thefe two points. f
1 What words will create Copy-
holds of inheritance, and what Copy-
holds of F rank T enant.
2 How Copyholds of inheritance
(hall defcend.
. Touching their creation , Copy-
holds of inheritance , and Copyholds
' of Frank Tenement, are created by the
fame words that inheritance and
F rankT enement at the common law'
are created by. '
If a Copyhold be granted to a man,
and
and to his heires males, or heires fe-
males.
If to a naan & Janguini fito bendita -
bili.
If to a Deane and Chapter , or to a
Major and commonalty, without any
exprefle eftate, or without a limitati-
on of fome inferior eftate. In all the/e
Grants, a perfett eftate in Fee paf-
ieth.
And fo peradventure if I furrender
a Copyhold to a man & his heires,and
he reciting this eftate, refurrendreth
in the fame manner to me, that I fur-
rendrcd to him, not making any men-
tion of my heire, yet this recitall fee-
meth fufficient to pafle a good Fee
fimple.
So, ifl furrender unto you as large
an eftate, as 1, S. hath in his Manor of
Z>. and he hath a Fee fimple in his Ma-
nor , it is fomewhat probable, that an
eftate in Fee fimple Ihould pafle, by
reafon of his relation without the
word Heires.
Ifa Copyhold be Surrendred toa
, man, & femini fuo bxreditabili de corpo-
re , or to a man,<^ b<eredibni ex ipf» pro-
creates , or to a man in Frank Marri-
age
(i6o)
*gc with his wife ; in thefe Grants an
eftate taylepafleth in the firft, with- j
©uc the word heires , in the fecond ,
without the body } in the third with- p 1
out either. ™
Jfthe King by his Steward granted! (fi
a Copyhold to a man , and to his »
heires males or his females , no Fee lira
Ample pa fleth, becaufe the Lord ne- f«>
ver intended to pafle fuch an eftate.
Ifa Copyhold be granted to an Ab* (S'
bot, and to his heires , an eftate for dm
life only pafletb. Itr i
So if I Grant a Copyhold to a man xi
in F ee Ample , ac fanguini fuo in perpe- 'f
tuum, or fibi & ajfign.fuit in perpetuttm^ 5rw
yet the word heires wanting no b
greater eftate than for his life pal?- L»<
feth. *
The fame law is, ifa Copyhold be mid
granted to a man, and to his heires, as jg
long as I. S. (hall live, this is onely an
eftate, per anter vie, & a rend, limitted jj(f
upon thiseftate is good- tin.
But if a Copyhold be granted to a ^
man , and to his heires , as long as ;y
fiich a tree (hall grow in fuch a ground 4
this is a good Fee, and a render limit- Htf
red upon it is void. itfo
Jfa Copyhold be granted to l s*
and I.N. & baredibas, they are jovnt
Tenants for life • and no inheritance
paffeth onto either, becaufe of the
i uncertainty for want of this word
(fins ) but if a Copyhold be granted
to 1. S; onely & bsrend. a good Fee
fimple pafleth without the word
I finis.
Ifa Copyhold be granted to a man,
& htredibus , an eftate tayle doth
notpafle, for want of the words de
eorpore. And if a Copyhold be gran-’
, ted to a man , & liberis aut pner. finis de
carport ; an eftate tayle doth not pafle
for want of this word ( heires ) for
i what eftates foever are intayles fince
' the Statute De donis Conditiovalibus,
were fee fimples conditional^ but this
! could be no Fee fimple conditional!
i before the Statute without the word
( kites ) and therefore no intayle
! fince the Statute, And for the lame
realon , if a Copyhold be granted to
a man , and to the ilfues nules of
his^body an eftate for life onely paC
Ifa Copyhold be granted to a man.
Without exprefiing any certain eftate
M by
( I«0
by i mplication of Law , an eftate for act
lifeonely pafieth; and if I grant a ®A
Copyhold to thr ee } habtndum fitccefi- li
ve, they are joynt T enants,unlefle by lao
(beciall Guftome the word JueceJfm bp.
make their eftates fcverall. Thus pure
much touching the creation of Co- k
pyhold eftates. M!
* fro
bio
T Hedifcentsof Copyhold of in- wit
heritance are guided and dire- li-
fted by the rules of the Common Mi
Law , as well as the creation of Co- :re
pyhold eftates. ^
If a Copyholder in F ee-finiple ha- ie,
Ting iflue , a fonne and a daughter :fn/p
by one venter, and a fonne by another Isra,
venter, dieth; and the fonne by the lie I
firft venter entreth and dieth; the Land grtfe
(ball difeend to the daughter, Q*}* H
ptjfejjio fratrk de feodo fimplici facit ft-
rorent t jft hreredem- flic
But if a Copyholder in tayle, having ft, i
iflue, a foune and a daughter by one mjn
t'e«fer,andafonne by another vwrfw, rnjli
dieth ; and the lonne by the firft venter
entreth
(163)
entreth and dieth, the fonne of the ft-
cond ven/er. (hall inherit.
If a man having iflue , a fonne and a
daughter by one venter , and a fonne
by another venter, the eldeft fonne
purchaftth a Copyhold in Fee, and
ayeth without iflue, the daughter
(hall have the Land , not the yonger
fonne , becaufe he is bn: of the halft
blood to the other.
If a man hath a Copyhold , by df-
ftent from his mothers fide, if he die
without iflue, the Land (ball goe to
the heires of the mothers fide, and
fliall rather efcheate , than goe to the
heires of the fathers fide; but if I pur-
chafe a Copyhold, and die without
iflue, the Land fliall goe to the heires
of my Fathers fide : but if I have no
heires by my Fathers fide, it fliall goe
to the heires of my mothers fide ra-
ther than eftheate.
If there be Father, Unckle and
Sonne , and the lonne purchaftth a
Copyholdin Fee, and dieth without
iflue, the Uncle fhall inherite, and
not the Father, becaufe an inheritance
may lineally diftend , but not af-
cend,
M 2 If
If there be three brothers, and the J
middle brother purchafcth a Copy- :ei
hold in Fee , and dieth without ilfue, ■
the eldeft (hall inherit , becaufe the jf
worthieft of blood. 1
If there be two Copartners, or a
two Tenants in Common of a Copy- I 11
hold, and one dieth having iflue, the de
ifliie fhall inherit, and not the other
by the fury ivorlhip ; but other wile it 0
is of two joynt Tenents. Should I ' :i
give way to my Penne , and write on '/•
thisTheame till I wanted matter to »«
write on, I fhould make a large Vo- f.
lume in dilating this one point^there- ■■■■
fore I will contraft my lelfe , intreat-
ihgyou to fupply by your private
cogitations, what I have either wil-
lingly or unwittingly palled over
in filence , onely take this caveat by \
the way. , ‘ ,
Though all qualities neceflarily in- *wl
cident to eflates at the Common
Law , are likewife incident to Copy-
hold eftates ; yet the Law i s not fo of %
collateral! qualities , without (peciall
fo- %i a ' Cuftomej and therefore a Copyhold y
(hall be no aflets to the heire. Id®
A difeent of a Copyhold , (hall not t
toll
' C»*5)
toll an entry. A Surrender made by
Tenant in tayle ( admit a Copyhold
may be inwyled ) or by a Baron of a
Copy hold, which he hath in right of
uis Wife , lhall make no dilcontinu-
ance, becaufe thefe are collatterall
qualities, and not necefTarily inci-
dent.
Thus much of the feverall eflatea
of Copyholds, together with their
feverall qualities incident to their fc-
verall eftates. I come now in the
nrft place to examine how Copyhol-
i , rs are to impieade, and be im-
1 pleaded.
Sec. II.
A Copyholder cannot in any A-
ftion reaU , or that favoreth of
the realty, or hath a dependance upon
the realty, implead or be impleaded
m any other Court, but in the Lords
l ^? r or concerning his Copy-
hold, but in Aftions that are meerely
perfonall, he may Cue or be fued at the
Common Law.
Ifa Copyholder be oufted of his
M 3 Copy*
(i&S)
Copyhotdbyaftranger', hee cannot
implead him by the Kings Writ , but
by Plaint in the Lords Court , and
(hall make proteftation to profecute
the fute in the nature of an Aflize of
novell difleifin , of an A (fee of Mon
D'ancejior of a Formdon in the Di-
(cender, Rever fer, or Remainder , or
in the nature of any other Writ, as
his caule (hall require , and (hall put
in pltg. dc proftqttend. I
If a Copyholder be oufted by the
Lord, he cannot maintaine an Aflize
at the Common Law , becaufe he
wanteth a Franck-Tenant, out he
niay have an aftion of trefpafle a-
gainft him at the Common Law } for
it is againft jreafon , that the Lord
(hould be Judge, where hehimfelf is
a party.
If in a plaint in the Lords Court
touching the tytle of a Copyholder,
the Lord givethfalfe judgement, hee
cannot maintain a writ offalfe judge-
ment, for then he rtiould be reftored to
a Franck-Tenant, where he loft none.
No Copyholder of bafe Tenure
in ancient Demefne , can maintaine a
Writ of droit chfi } or a Writ of Mon-
/?rd*
flravernnty but Tenants of Fancke-
tenure in ancient demefae can.
A Copyholder that may cut down
Timber trees by Cuftome, by licence
of the Lord,maketh a Leaie for yeers,
theLeflee cutteth downe trees, the
Copyholder (hall not have a Writ of
waftc, but (hall (ue at the Lords
Court to punilh this wafte.
If a feme Dowable, by Cuftome
of a Copyhold; by plaint in the Lords
Court, recovereth Dower and dama-
ges, no Attion of debt lieth at the
Common Law for the/e damages, be-
caufe the Aftion, though it be in it
felfe perfonall , yet it dependeth up-
on the realitie.
If a Copyholder make a Leaie by
copy for yeares, or bv Deede with
Licenfe , an A&ion of debt lieth for
the Rent, referved upon either Leafe
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 C e ft“y before
the Statute 27.H.8. cap. 10. could a-
vow for the Rent referved by him
upon a Leaie for yeeres , and yet he
could maintaine an Aftion of debt for
M 4 fuch
(i« 3 )
fuch a Rent , becaufe an A&ion of
debt is grounded upon the con-
tract
If a ftranger cut downe trees grow-
ing in the Copyhold ground, an afti-
onofTrefpafle lieth at the common
law againft him ; fo doth it againft
the Lord, where he cutteth them
downe, when by Cuftoffie they be-
long to the Tenant, becaufe this is a
ineere perfonall Action , and dam-
magcs onely are to bee recove-
red.
And if a Copyholder without li-
cence, maketh a Leafe for one yeere,
or with Licence maketh a Leafe for
many yeers, and the Leffee be eje&-
ed , he (hall not fue in the Lords
court by Plaint, but lhall have an
eje&icne fame at the common law, be-
caufe he hath not a cuftomary eftate
by Copy , but a warantable eftate
by the rules of the common law.Thus
much of the manner how Copy-
holders are to impleade, and be im-
pleaded.
I
bo
'pyi
So
or
itt
B;
w«
*
tt
»
ch;
M
So
ikt
fciji
Wei
at
i
y
Sec. LI I;
I Come now in the fixt place , to
foew under what Statutes Copy-
holders are comprehended. Co-
pyholders are comprehended under
i Statute , either by exprefife limitati-
on in precift words } or by a fecret
! implication upon generall words.
4 By exprefle limitation in precifc
) words ;
' As by the Statute of the firft of R.
3. cap .^. it is expreflely provided, that
j a Copyholder having copyh old land,
to the yeerly value of twenty fixe
(hillings and fixe pence • above all
f charges may be impanelled upon a
l Jury > as well as he that hath twenty
1 fhillings, per annum of Freehold-
>. I land.
! _ So by the Statute of r.E. 6 . cap. 14.
: it is ex prefly provided, that upon
1 thedi/folution ofAbbyes, and Mona-
1 lieries, Copyholds fhould continue
as they did before the Statute,
and fhould fall into the Kings
hands.
So by the Statute of 2. E. 6 . cap.$.
it is exprefly provided , that the in-
te-reft
tereft of a Copyhold, fhould be pre- , jj
ferved , notwithftanding it be not In
found by Office , after the dcceafe \\
of the Kings Tenant.
So by the Statute of i. Mar. cap.
1 2. it is exprefly prov ided , that if at
any Copyholder being Yeoman, Ar- yi
tificer, Husbandman, or Labourer, tl
and being of the age of eighteene or t
more, under the age of fixtie ; not (
ficke, impotent, lame, maymed, nor {
having any other juft or reafonable j
caufe of excufe upon requeft made by t
any man in authorise, refufech to aide f c
Juftices in fupprefling of riotous per- %
ions, that then immediately he (hall
forfeit his Copyhold to the Lord, of u
whom it is held during the Copy hoi- jf
ders naturalllife. 8 e
So by the Statute of E Hz. cap. toi
14. it is exprefly provided, that the »,
forgeingof a Court Roll, to the in-
tent to defraud a Copyholder, (hall (, s
be as well punifhable , as the forge- tji
ing any other Charter , Deede,
or writing fealed, whereby to defeate 4,
a Copy holder or F reeholder. i
So by the Statute of 1 3.E liz.cap.y.
Itisexprefly.ptovided, that the Co- f ]
It
i
it.
IE
10
IE
IE
I
If
t\
111
i
i
t
k
t
i
t
a
')
S
d
<I7l)
Py hold land, as well as the Freehold
land of a Bankerupt, (hall be fold for
the fatisfying of the Creditor.
So by the Statute of 1 4. Eliz. cap.
6 . It is exprefly provided, that if
any of the Queens lub/efts goeth be-
yond the Seas without licence, that
then the Queene (hall not onely take
the ordinary profits of the fugitives
Copyhold Land , as they arife, but
(hall let, let, and make Grants by Co-
py , and ufuall Wood-files, and o-
ther things, to all intents and purpo-
ses* as a Tenant pro terme durante vie 3
may doe.
So by the Statute of the 35. Eliz:
cap. 2. It is exprefly provided, that
if any perfon or perfons being convi-
cted of recufancie , repaire not home
to their ufoall place of abode, not re-
moving from thence above five miles
diftant, that then any perfon, or per-
fons thus offending , (hall not onely
forfeit their Freehold land to the
Queene ; but withall their Copy-
hold Land to the Lord, or Lords of
whomitisholden.
Thus have I (hewed in briefe under
what Statute Copyholders are cona-
prc-
(172)
prehendedby the expreffe limitation *
in precife words. Now I wilUhew
yon as briefely as I can , under what fa
Statute they are comprehended by h<
fecret implication upon generall m
words. m
If
Sec. LIIL r
4
S Ome hold that all Statutes that it
fpeake generally of Tenants, ex- fo
tend to Tenants by Copy ; but it is
much to be feared that we fliall wan- a
derfrom the Truth, if we give ere- It
ditto this conceit : for if we perufe it
the Statute , we fliall meete with an fa
infinite number ofthem that fpeake ®
generally of Tenants, and yet touch ioi
not Tenants by Copy ; wherefore
not giving way to this opinion, as tS,
being erronious , I will let you down ^
an infallible rule , which will truely ui.
direct you in the expofition of the ge- id,
nerall words in Statutes j and that is
thus. j(j
When an A& in Parliament alte- ^
: reth the fervice, tenure, intereft of the ^
land , or other thing in prejudice of
the Lord,or of the cuftoroe of the Ma- ^
nor
)J5
9
W
\
i
ik
&
til
1D-
JM
fi 1
a !
»
i\
»
i
R
if
i
f
(173)
nor, or prejudice of theTenant, there
the general 1 words offuch an Aft it*
Parliament extend not to the Copy-
hold; but when an Aft is generally
made for the good of the common
wealth, and no prejudice may accrue,
by reafon of the alteration of any in-
tereft, fervice , tenure or cuftome of
the Manor, there ulually Copyholds
are within the generall purview of
fuch a&s.
_ The Statute of Weft. 2 .ca.i. of in-
tailes , extendeth not to Copyholds,
becaufe it would be prejudicial! to
the Lord • for by this meanes the
Tenure is altered : for the Donee
intaile , without any fpeciall referva-
tion ought to hold of the Doner by
the fame Service that the Doner hold-
eth over; befides the words of the
Statute are, J^uodvolunta>'T>onator 4 l
in eburta Domini Jiti manifejiti exprejpt
tit ettero obfervit , which proveth, that
the intent of the Statute was, that no
hereditament fhould be intailed with-
in this Statute , but fuch an one as
either was given , or at leaft may be
given by Cha rter, or Deed ; but Co-
pyholds are no fuch hereditaments ,
and
( 174 )
and therefore not within the body of ^
she aft; yet it is holden, that Cuftotn
with the cooperation of the Statute ief
will make an eftate tayle. ^
The Stat. of W.2.C.20. which giveth of
theE^it.extendeth not to Copyhold, inf
becaufe it would be prejudiciall to by
the Lord, and a breach of the cuftome k
that any ftranger (hould have intereft Ihc
in the lands holden by Copy with- Ki
out the admittance , and ordinary al- lai
lowance of the Lord, _ I*
The Statute of 1 6.R.2. ca. 5. which mi
thaketh it a forfeiture of lands, Tcne- lit
ments , and Hereditaments, to the m
purchafor of Excommunications, sf
Buls,&c. in the Court of flume, a- ion
gainft the King, &c. extendeth not pm
to Copyhold , becaufe it would be
prejudiciall to the Lord to have the
King fo farre interefled in his Copy-
hold without his content.
The Statute of 2. H. 5. ea. 7. of He- [ ,
retinues extends not to Copyholds;
for though the Lord of a Manor is i,!;
yeerly to receive a benefit in having ^
the lands after the yeere and the day 1:5
forfeited unto him ; yet becaufe the
King is a (barer in this forfeiture;
there-
(» 75 )
therefore'lands by Copy are nor coni*
prehended under the generall words-
befides the Statute ipeaketh of the*
Kings having annmmditm , &vafium
) of thefe lands forfeited for herefie , as
i in lands forfeited for felony • where-
• by it appeareth , that the meaning of
the Statute 5s , that (uch Lands onely
mould be forfeited , in which the
King by the ordinary courfe of the
i law (hould have Armmmdum &va-
ftum , if the Tenant of them had com-
mitted felony: but fitch landsarenoc
£• lands by Copy- for if a Copyholder
: | committed felony , his Copyhold is
, prefently forfeited to the Lord ; there-
f° re copyholds are out of the generall
t\ purview of this Statute.
t
Sec. LIV.
f _
TT H E r Stat T of 2 7- H. 8. M. io.
M JL of ufes, touched] not Copyholds
; becaufe the tranfmutation ofpofleP
ii I lion, by the foie operation of the Sta-
8 tute without allowance of the Lord
if or the Agreement of the Tenant ’
would tend to the prejudice, both
i °* the Lord , and of the Tenant, and
the
0?6)
the branch of the fame Statute which i
fpeaketh of Joyntures toucheth not iiq
Copyholds , becaufe Dowers of »d
Copyholds are warranted byfpeciall «je-
cuftome onely, and not by the com* I*
mon law , or by the generall cu- {iv<
Home. 'I?
The Statute of 3 1 . of H. 8. cap. 1. din
32.H. 8. 3 2. by which joyntTene- the
ments and Tenants in common are
compellable to make partition by a
Writ dt partitwnejacimd. As copart-
ners at the common law , touch not
Copyholds , becaufe this alteration
of the Tenure without the Lords con- ~
lent may found to the prejudice of the
Lord. . ,
The Statute of 32.H 8.c*a8. which »t
confirmed! leafcs for 21. yeares, or ijg.
three lives made by T enants in tayle, ic[
or by the husband and wife , of the £11
lands of the wife , touch not copy- tit
hold: for the Statute fpeaketh of lea- aiR
fcs made by Deed only; fo that the in- fc
tent of the Statute is to warrant the ifa
leafing of fuch lands only as are Gran- S01
table by Deed, but fucb are not co- 4
pyhold lands: for though they may M
by licence of the Lord be demited by 1
Indcn-
Cl 77)
Indenture , yet in their owne nam£
they are demisable onely by copy -
and therefore out of the generall pur-
view of the Statute : for the lame rea-
son, the fa me Statute cap. 3 4. which
givethan entry to the Grantee, ofa
R e verlion, upon the breach of a con-
dition by the particular Tenant, tou-
ched! not copyholds.
Sec. LV.
'TPHe Statute of 17. E. 2. cap. 10.
X which giveth the Wardftdpe of
Idiotr land anto the King, toucheth
not the Ideots copyhold; for there-
by great prejudice would accrue to
the Lord.
But the Statute of Mart on , cap. \
which givethdammagesto a feme, up-
on a Recovery in a Writ of Dower,
where the Baron dieth feiled , exten-
deth to copyhold.
So that the Statute of fVrjlm.-z.cap.
5. and the three feverall branches of Co.\.fo. i*.b.
the fame Statute.
1 The one ot which v i vech the Ctti
N m
'
(> 78 )
irt vita, upon a difcontinuance made Sc
by the Baron. «
2 The fecond which giveth the re- fine'
ceit unto the feme upon the Barons re- pifl
fufall to defend the wives title. fyf
5 And the third , which giveth a p
quod el deforceat to particular tenants ion
extends to copyhold. vtna
So that the Statute of 3 1. H. 8. ca. yo j)
13. of tMetiajler. which provideth t ed
for the avoidance of doubling of c- tea
ftates. ter
And the Statute 32. H. 8. cap. 9. y
Co^,fi’i6. againfl Cbamptrtie, and buying of Li- mt
tigious Titles, and chap. a?, which
giveth an entry in liew of a Cut in it ini
vita , extendeth all to copyholds, be- rajI1
caufe theft Statutes are beneficiall to ft
the common wealth , and not at all
prejudicial! to the Lord in the altera- 0B
tion of T enure eftate. Service, &c.
So the Statute of 4 .H. 7. cap. 24. 1( g^
of F ines, excendetb to copyholds : for
ifa copyholder be Difleifed, and the
Defleilbr levieth aFinewithprocla- ^
mations , and five years pafleth with-
out any claime made ; this is a barre ^
both to the Lord , and to the copy- ^
holder. ' U 1,
So
( 179 )
So if a copyholder make a Feoff-
ment in F ee,and the F eoffee Ievieth a
fine with proclamation, and five years Ce 9-f 0 ' 1 °5
pafie, the Lord is barred; but if a
Copyholder levie a fine , and five
yea res pafle , the Lord is not barred,
for the Fine levied,the Copyhold ha-
ving no Frank Tenant, is utterly
void. And whereas it hath been doub-
ted , that this Statute fliould not ex-
tend tocopyhold;but the Lord fliould
hereby receive grand prejudice; for
he fliould not only lofe the Fines, up-
, on alienation or difcents, and the be-
nefit of forfeiture , but fliould withall
be in hazard to be barred of his Frank
tenant and inheritance.
To that I anfwer , if the Lord re-
> ceive any fuch prejudice, it is through
hi* owne default , for not making
claime, for in regard of the privity
in eftate , that is between him and the
Copyholder he may make claime , as
well as the Copyholder himfelfe ; St
■uiglantibm non dor muntibtu jura fub-
ztniunt.
Thus have I fhewed under what
Statutes Copyholds are comprehen-
ded. I come now in the feventh place,
tofpcak of fines, Nz Sec,
(i8o)
Sec. LVI.
b
litd.
Ceji :
A Fine is a fiimme of money paid ass
to the Lord of the Manor for an me
Income into any lands or T cnements. A
In (bme Manors Fines are certaine, in tooi
(ome incertaine. the'
Fines of Copy By (peciall cuftome Copyholders tret
holds. are to pay Fines upon licences gran- by
ted unto them to demife by Inden- pyt
ture, but by generall cuftome they ten
are to pay Fines onely upon admit- |al
tances. If
If the Lord having a Copyhold by sor,tl
Elcheate forfeiture , or other means, law
maketh a voluntary admittance, a fine heart
is due unto the Lord. teen;
If a Copyholder (urrendreth to kii
the ufe of a ft ranger , and the lejsh
Lord admitteth, a fine is due to the fcne
Lord. tijlt t
So if a Copyhold delcendeth, and fa,
the Lord admitteth the heire , where
by the cuftome of the Manor, the wife
is to have Dower, and the Husband is
to be Tenant by the curtefie of a Co-
pyhold, either ofthem (hall be admit-
ted, and (hall pay a F ine to the Lord.' ^
(i8i)
If a Copyhold be granted durante
vita , and the Grantee dieth, living,
Cejiuy qut vie , and a ftranger entreth
as a generall occupant, he (hall be ad-
mitted, and (hall pay a Fine.
Andfo if a Copyhold be granted
to one and his heires, durante vita • and
theGrantee dieth, and his heire en-
treth as a (peciall occupant, where
bythecuftonieoftheManor, a Co-
pyhold may be extended, upon the ex-
tent, the party (hall be admitted, and
(hall pay a Fine.
Where by the Cuftome of the Ma-
nor, the Bailiffe of the Manor is to
have the Wardlhipof the Copyhold
heire; being under the age of four-
reene, fuch a Guardian (hall neither
be ad in itted, nor pay a Fine , becaufe
he isbut a partner of the profits, and
that not in his owne right , but in the
right of him to whom he is Guar-
dian.
If the copyhold Lands of a Banke-
rupt be fold according to the Statute
of the 13. E Hz. cap. 7. the Vendee
flia'lbe admitted and pay a Fine.
If a Villaine purchafeth a copyhold,
the Lord of the Villaine may enter,
N 3 and
(l82)
andfeLe it, and the Lord of the Ma- **
nor (hall admic him, and have a *<®;
Fine. &
If a copyhold be granted upon con-
dition, and the condition be broken, mi
and the Granter entreth , hec lhall M 1
not be admitted , neither pay a Fine, ^
becaule upon the breach of the condi-
tion, and the entry , he is to all in-
tents, in Statu quo frim , as if no grant ^
at all had been made. 1 yf
Ifa copyholder in Fee lurrendreth hi
for life, referving the Reverlion, and 1*
theLefleeforlifedicth, thccopyhol- Ft
der lhall not be admitted to his Re- li
verfion, neither lhall he pay a Fine. «
becaule the Reverfion was never out toi
of him. ^
If a copyholder be difieiled , and wit l
then emereth upon the Defleifor, or fort
recovereth by plaint, in the nature of inth
an Aflize , hee lhall not be admitted, <W
neither lhall he pay a Fine, for he con* .Fine,
tinueth Hill Tenant by copy,notwith- If
Handing the difleifin, but where by a S,
Plaint a Copyhold is recovered upon
theaccrewerofa new Tytle, where 'M
he that recovereth was never admit- \
ted nor paid Fine$ thereupon his re- 4
covery,
(* 83 )
covery , an admittance is requifite,
and a Fine is due : as if a Copyholder
dieth ieiied, a ftranger abateth , and
the heire recovereth by Plaint in the
nature of an Aflize of Mott d arnict-
y?er*upon this recovery hee ihall be
admitted, and pay a F ine.
If I take a Wife, with Copyhold
in Fee, though by this inter-marriage
thereaccrueth a prefent intereft to me;
t yet becaufe I am felted, non jure preprio,
but jure alitno , therefore I fliall not
be admitted , neither Ihall I pay a
i Fine.
| The fame law is, iffhe be a Ter» VideTlmd.
mor of a Copyhold; for though the
terme by the inter-marriage be fo ve-
iled in me, that I may difpoie of it
without controule ; yet becaufe be-
' fore diipoier I am poflefled of it , but
: | in the right of my Wife ; therefore I
; ihall neither be admitted , nor pay a
B Fine.
If a Copyhold be furrendred for
life, the remainder to a ftranger,
i though the admittance of Tenant for
life be diffident to inveft the eftate in
ibim in the Remainder , yet upon the
death of Tenant for life, he in the re-
N 4 main-
\h
(•« 4 )
rna'mder (hall be admitted, and pay a ;/fc
Fine. jttVj
So if a Copyhold be granted to Stat
three, babmd. (u vet (five , whereby mad'
Cuftome fucceflive is in force ; if any rf is
one d;eth, he that next fuccee- Writ
deth lhall be admitted and pay a bate
Fine. Hull
If two Copartners , or Tenants in A
common of a Copyhold be, and the nos
onedieth, and the other hath all by whi
diicetu, he (hall be admitted, lhall fou
pay a Fine. But if, two joynt Te-
nants be of a Copyhold, one dieth,
the other lhall have all by the lurvi-
vorlhip without admittance, or pay-
ing Fine, becaufe joynt Tenants to
all intent sand purpoles, are leifed
per my ^ & per taut.
If two feverall Copyholders joyne
in a. Grant of their copyhold by one
copy ; or if one Copyholder having
feverall copyholds, igranteth them by
one Copy ; yet the Grantee lhall pay
feverall Fines, for they lhall inure as
feverall Grants.
But if two joynt-Tenants , two A
T enants in Common, or Tenant for \J
life , and he in the Remainder joyne ii|,
in
(i8 5 )
in the Grant of a Copyhold, one Fine
onely isdue 5 and it (hall inure, as one
Grant onely : fo if a Surrender be-
made , and after a common Recove-
ry is had by Plaint in the nature of a
Writ of entry, in Le p/ifl, for the
better aflurance, one Fine onely
lhall be paid.
And thus much of Fines. I come
now in the next place to Forfeitures ;
wherein I will chiefly rely upon thefe
foure points.
* ‘
1 What Atts amount to a For-
feiture.
2 What perlons are able to for-
feit.
3 What perlons are able to take
benefit of a F orfeiture.
4 What A&s amount to a con-
firmation pf an eftate for-
feit.
Sec. LVII.
O F Afts which amount to For-
feiture, for.ieare Forfeits, e»
hfiantej that they are committed:
feme
(i 86)
iome are not Forfeits till prefent- kv
ment. Offences which are appa- OaO
rant and notorious , by which the j»S
Lord by common preemption , can- i
not chufe but have no tice,are F orfei- Cm
tures,M inflante, that they are com- pjlj
mitted : As if by fpeciall Cuftome,up- fi8
on the difcent of any Copyhold of In* 1
heritance, the heire is tyed upon tfe
three folemne Proclamations made at of
three feverall Courts, to come in and et
be admitted to his Copyhold, if bee Fi
faileth to come ; in this failer is a for- fit
feiture, Ipfo fiift.i. jfi
Saifa Copyholder be diffidently amc
warned to appeare, and hee faileth, co^
this is a forfeiture, Jpfo fa&o. fin
But if he be hindred by ficknefle, the
or by overflowing of waters , or if g
he be much in debt, and feare to be M t
arrefted,or if he be a Bankerupt , and >}*.
keepeth his houfe , then his default is hi
no forfeiture. [f
If a Copyholder in the Court be toi>
called , and fummoned to be fworne y
of the homage , and refufeth j this is ^
a forfeiture, lpfofaQa. ^
So if a Copyholder be fworne of t k
the homage, and then refufeth to f,,
pre-
(* 8 7 )
lent the Articles according to hi*
Oath ; this is a forfeiture , tpfo
fatfo.
So if a Copyholder will fweare in
Court, that he is none of the Lords co-
pyholder, this is a forfeicnre, Ipft
f*Bo.
But if a copyholder in prelence of
the court fpeaketh unreverent words
of the Lord, as that the Lord exaft-
eth and extorteth unreafbnable
Fines, and undue-Services, this is
fineablc only, but no forfeiture j and
l ifhe faith in Court, that he will devile
a meanes no longer to be the Lords
copyholder, this is neither caufe of
fine nor forfeiture 5 for peradventure
the meanes that he intended was law-
full, viz. by palling away his copy-
hold , Et ubi fenfut verborttm tfl multi -
pkx, verbs Jemper font accipienda in me-
liori fen fu.
If 1 he Steward fhewcth a court Roll
to a Copyholder, to prove, that his
land is holden by Copy , and that the
Copyholder faith he is a Freeholder,
and Iheweth a Dccde, pretending
thereby to procure his land to be
Freehold, and tcareth in peecesthe
I court-
Court Roll, this is a forfeiture Jj&/>
fafio. ntp
So if the Lord, upon the admit- &
tance of a Copyholder ; the Fine, by ^ 0l
the cuftonie of the Manor being cer- 6®
taine, demandeth his Fine, and the
Copyholder denieth to pay it up* who
on demand, this is a forfeiture Ipfo up
fatlo. jut]
So if a Copyholder will fue a Re- oft
plevin againit the Lord , upon the *
Lords lawfull diftrefle for his Rent for
or Services , this is a forfeiture lpfo hn
fiUt. .»
But if the Copyholder be in doubt 1,®
whether it be due or not, and there- 4*
fore intreatcth the Lord, that the ho-
mage may inquire the truth, this is no
forfeiture. jfovc
If the Fine by the cuftome of the « If
Manor be incertaine, though area- ,'ihtC
fonable Fine be aflefled , yet becaule Jjisaf
ho man can prov ide for an uncertain- > Sc
ty, the Copyholder is not bound to 'b
pay it prefently upon demand, but tot
/hall have convenient time to diC loti
charge it : if the Lord limit no cer- pr
taine day for payment thereof, and con
if within convenient time it be not tor
i dif. harged , this is a forfeiture with-
out prefentmenc.
But if the Fine be unrealonable,
| though it be never paid , it is no for-
, feiture, and it (hall be determined by
t the opinion of the Juftices before
whom the matter dependeth , either
upon a demurre,or in Evidence to the
t jury , upon the confeflion or proofe
of the yeerly value of the land, whe-
1 ther the Fine be rea(onableor not;
' for if the Lords might Aflefie unrea-
; fmable Finesattbcir pleafiires, then
, moft eftares by Copy , which are a
great part of the kingdom, and which
have continued time out of minde,
might now at the will of the Lords be
defeated, and deftroyed,which would
be very inconvenient.
If the Lord demanded his Rent, and
the Copyholder denieth to pay it, this
L is a forfeiture Ipfi fatfo.
So if the Copyholder faith , that
hewanteth money to difeharge the
Rent , and therefore intreateth the
Lord to forbeare , untill he be better
provided, unlefie the Lord giveth his
conf nt ; this non-payment is a forfei-
L cure, Ipfi fuito.
(* 9 °)
For a Copyholder knowing his day
of payment, is to provide againftthe
day ; but if the Lord commeth upon
the Copyholders ground, and deman-
ded! his rent , and neither the Copy-
holder himfelfe , nor any other by his
appointment , is there prefent to an-
(wer their demand , though this
bea deniall,in law, of the rent, yet this
is no forfeiture.
But if the Lord continueth in ma-
king demand upon the ground, and
the Copyholder is ftill abfent , this
continuall dcniali in law, amounteth
to a deniall in fatt , and maketh the
Copyholders eftate fubjeft to a forfei-
ture without preferment.
If a Copyholder for life fuffereth a
recovery by plaint in the Lords court,
as Copyhold of the inheritance, this
is a forfeiture Ipfifatto.
But if he furrenderinFee, this is
no forfeiture, becaufe it did not pafle
by livery.
If a Copyholder committeth wafte
voluntarily or permiflively , this is a
forfeiture JpfifaUe.
Voluntary ,as if he plucketh down
any ancient built houfe, or if he buil-
deth
(*9 0
deth any new houfe , and then pulleth
it down againe ; or if he ploweth me-
dow j fo that thereby the ground is
made wor fe ; or loppeth the trees, or
felleth the lopping; or if hecutteth
down any fruit trees for fuell , ha-
ving other wood fufh'cient , this and
the like voluntary wafte are forfei-
tures
Pei „ as if he fuffcreth his
houfe to decay, or fall to ground for
want of neceflary reparations; or if
he fuflfereth his niedowe9forwantof
mending his bankes to be furrounded,
Co that ic becomes Ru (hy } or worth
nothing ; Or his arrable ground, fo to
be (ur rounded , that it is become un-
. profitable. Thefe and the like per-
miflive waftes are forfeitures lpj 3
jacto.
And thus much of afts which are
forfeitures , to tnftantt , that they are
c-ommited. A word of thofe Afts
which are faid not forfeitures till pre-
sentment.
(190
Sec. LVIII.
N D (uch are thole offences ,
which. by common preempti-
on, the Lord cannot of himfelf have
notice of without notice given , as if
a Copyholder commitetn felony or
treafon.
So, ifa Copyholder be Outlawed,
or excommunicatechat the Lord may
have the profits of his Copyhold land ,
a preeminent is neceflary.
So, ifa Copyholder goeth about in
any other court to incitle any o-
ther Lord unto his Copyhold , or if
he alieneth by Deed ; thefe and the
like ought to be prefcnted.
Ifa Copyholder maketh a bargain
and (ale of his Copy hold,and it is not
inrolled according to the Statutejthis
is no forfeiture; no more than a Feoff-
ment withoac livery, becaule no-
thing paffeth.
So ifa copyholder maketh a feoff-
mcnc of all bis lands in Dale, and ma-
keth livery in his charter lands, no
part of bis copyhold land is thereby
for-
(i93>
forfeited • but if Livery be made in
any part of the Copyhold lands, all
his copyhold lands are forfeited.
If a Copyholder by Deede of bar-
gaine and lale inrolled according to
the Statute,dothbargaine and fell all
his Lands in Dale, having both Copy-
hold and freehold ; his copyhold is
not thereby forfeited; for the Law
will conltrue this to extend to his
freehold onely , rather than by any
over-large conftruftion make a for-
feiture in thiskinde.
And if a copyholder by Deed inrol-
led, bargaineth or (elleth all his copy-
hold Lands in Dale , or all his Lands
j in Dale generally, h aving no freehold
j Lands, this is a forfeiture.
Thus I have file wed you what
Afts amount to a forfeiture. Now
Iwilllhewyou what perfons are a-
ble to forfeit.
(<»♦)
fflC'
Sec. LIX. F
nit
A Man oittottfan* ntemrU, an Idi-
ot,or a Lunatique,though they ^
be able to t ake aCopy hold , yet they “
arc unable to forfeit a Copyhold,
becaufe they want common reafon,
nay comon fenfe. ®
So an Infant that is under the age
offourteene, is unable to forfeit his R'
copyhold, becaufe he wanteth di- dii
feretion , and till then he is to be in en
Ward to the next of his kindred J to
whom the inheritance cannot difeendj
or to the Lord, or the Bayliffe of the
Manor, as the Cuftome (hall war- to|
rant.
So a feme covert by any Aft fhe can ofe
doe of her felfe, cannot poffibly forfeit Loi
her copyhold , becaufe fhe is not f«i mi
jurMyfed fub poteflate viri : but if fhe ini
doe any Aft which amounteeb to a foe
forfeiture by the content of her hu£ 1
band, this is in her a forfeiture. con
An Infant at the age of diferetion ¥
, may forfeit his Copyhold , not by of- ad
fences which proceede front negli-
gence
095 )
gence or ignorance , but by flich as
proceed from contempt.
If an Inhnt come not in to bead*
mitted, according to the Cultame at
three folemn proclamations made ac
three feverall Courts ; or if he will
fuffer his houfes to goe to ruine,or his
ground to be furrounded; thefe Aft*
favouring of negligence onely, are no
forfeitures.
So if an Infant Copyholder fueth a *
Replevin againfl the Lord , upon a
diftrefle lawfully taken ; or ifhe ali-
eneth by Deed , or the like ; thefe
AftsreWhingof ignorance onely are
tio forfeitures-
But if he denieth from time to time
to pay the Lord the Rent, or commit-
ted voluntary wafte,noc withttanding
often warning given him by the
Lord; thefe a&s proceeding from
malice and contempt, are forfeitures ;
andfo ifhe committeth felony or trea-
fon.
If a Guardian of a Copyholder
committeth wafte, he fhall forfeit the
Wardlhip onely , not the inheritance
of the Copyhold.
If Cejiuj que uje , of a Copyhold
O 2 com-
(196)
committeth wafte, he (hall not forfeit c
the Copyhold.
If the husband committeth wafte
in Copyhold lands, which he hath in t
therightofhis wife; this isaforfei- r
ture ofthe wives Copyhold. !
But if a ftranger committeth wafte |
without the confent of the husband , 1
this is no forfeiture though the wife 1
confenteth.
If a Diffeifor of a Copyhold corn*
tnitteth wafte ; this isnoforfeiture.
$o,if a Copyhold be lurrendred to
the tife of I.S.and before admittance,
J. S. committeth wafte ; ItEis is no
forfeiture , for by the fame reafon
thathee cannot grant before admit*
tance.
If two joynt T enants be of a Co*
pyhold, and one committeth wafte,
he forfeited) his part onely , for no
man can forfeit more than hee hath
granted.
And therfore if there be tenant for
life, with a remainder over, of aCopy-
hold,and the Copyholder for life pur-
chaleth the Manor, committeth wafte,
or'doth any aft, which amounteth to
the extinguifiunent , or the forfeiture
(* 97 )
of a Copyhold , yet the remainder is
not hereby touched.
And fo if a Copyhold be granted
I to three, babend. JucccJfme , whereby
the cuftome of the Manor , this word
Succejfizx taketh place , the firft Co-
pyholder cannot prejudice the other
two by any aft : he can doe no more,
than if a Copyholder in Fee by li-
cence, maketn leafe for years by Deed,
or without licence by Copy , and ei-
ther of thefe lefTes commiteth wafte,
the reverfion is not hereby forfei-
, ted.
If l have two feverall Copyholds,
| by two feverall Copies , and I com-
mit wafte in one,this is a forfeiture of
this one onely , and not of the o«
. ther.
And fo ifl grant thefe feverall Co-
pyhold s by one Copy, yet they conti-
i [ nue feverall as they did before , and
j the forfeiture of the one is not the for-
: feiture of the other.
The feme law is , if two feverall
Copyholds Efcheate to the Lord,
i andheregranteththemagainebyone
t Copy.
And thus have I (hewed what per-
O 3 ions
(198)
ions are able to forfeit. I will now n
in a word (hew what perfbns are to f
take benefit of a forfeiture.
j
1
Sec. LX.
1
R Egularly it is true , that none 1
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 nia-
keth a Feoffment, and then the Lord
alieneth, neither tfieTJranter, nor
the Grantee can take benefit of this
forfeiture, for neither a right of en-
try , nor a right of aft ion can ever be
transferred from one to another And
therefore if a Freeholder alieneth in
Mortmaine , and then the Lord gran-
tethaway his Seigniory, neither the
one nor the other can ever take bene-
fit of this forfeiture.
So ifa leflee for life committeth
wafte, and then the leflor granteth a-
w ay the reverfion , this wafte is made
difpunifhable.
But if Tenant for life be ofaMa-
$ 99 )
Bof , with remainder over in Fee to a
ft ranger.
If a copyholder conimitteth wafte,
and then Tenant for life of the Manor
I dieth before entry ; yet he in Remain-
der may enter, forhehadanintereft
I in the Manor at the time of the forfei-
ture committed , though he could
notenter, by reafbn of the State in
Tenant for life, which being determi-
ned, his entry is now accrued unto
him for the forfeiture committed in
■ the life of Tenant for life,
i, And (ometimes, he that is neither
i Lord of the Manor, at the time of the
i forfeiture committed , nor ever
> after (hall take benefit of a forfei-
s ture.
f As if a Lord of a Manor granteth a
• Copyhold in Fee , and then granteth
• the Frank Tenement, or the inhe-
ritance of this Copyhold to a (Iran*
M ger; the grantee, though no Lord of Cl , 4 .^ 24
! the Manor , nor able to keepe any
i Court, (hall take benefit of forfei-
• lures made by the Copyholder , as if
It the Copyholder doe make a Feoff-
ment, Icafe, wade, deny the Rent,
f kc.
IV O 4
Thus
(20tf)
Thus have I (hewed what perfons <
are able to take benefit of a forfei-
ture. I will now in one word (hew t
what afts amount to a confirmation of
an eftate forfeited. !
Sec. LX I*
I F the Lord doth any thing where-
by he doth acknowledge him his
Tenant after forfeiture ; this ac-
knowledgement amounteth to a coiv-
firmation ; as ifhe diftreynetfrupon
the ground for Rent due after forfei-
ture 5 oriihe admitteth after the for-
feiture , or the like 5 the(e are eftop-
pels to the Lord, fo that he can never
enter , fo the Lord have notice of
fuch forfeitures before any fuchaft,
which may amount to a confirmation
be done : yet fome make this diffe-
rence , that thefe forfeitures onely
which deftroy not the Copyhold are
onely conformable by fubfequent ac-
knowledgement , and [not thofe for-
feitures which tend to the deltrufti-
ons of a Copyhold j As if the Copy-
holder
, ( 301 )
holder mafceth a Feoffment ; by this
the Copyholder is deftroyed , and
therefore no fubfequent acknow-
ledgement of the Lord will ever falvc
this (ore.
And this fiiall fuffice for forfei-
tures. I come now in the laft place,
to (hew what a&s amount to the ex-
tinguilhment of a Copyhold.
Sec. LXII.
W fferctdever a Copyhold is be-
come demilable by-Copy, ei-
ther by the Aft oftheLord 3 fey th«
By the Aft of the Lord ; As if a Co-
pyholder Efcheateth, and the Lord
granteth away any efface by Deed,
this is an extingui&ment. So if hee
maketha Feoffment upon condition,
and then r cntreth for breach of the
condition : yet the Copyhold is ex-
tinguilhed, bccaufe once not deni-
able.
Bat
( 262 ^
Bat if the Lord keepeth the copy-
hold lands, for never fo many yeares,
or grameth at will, this deftroyes not
the copyhold, becaufe it continue*
ever demifable by copy.
By the Aft of the law ; As if the
copyhold efcheated be extended upon
a Statute or Recognizance acknow-
ledged by the Lord , or if the feme of
the Lord hath this land affigned unto
her for her Dower , although thefe
impediments be by the aft of the law :
yet becaufe they are lawfull, the land
can never after be granted by C opy*'
By the aft of the copyholderhim-
felfe j As if he acceptech a leafe for
yeares at the common law , either me-
diate or immediate from the Lord of
the copyhold , this is an abfolute ex-
tinguifhment.
But if he accepteth a Leafe for
years of the Manor, the copyholder
by this hath not continuance, but
this is no extinguifhment, becaufe the
land continueth ftill grantable by
copy.
If a copyholder with licence make
a leafe for yeares to a ftranger 5 or
without licence , make* a leafe for
yeares
(203)
yearestothe Lord, the copyhold is
not hereby extinguifhed , and yet it is
not dem ilable by copy.
So if a copyholder intermarrieth
with a feme Seignioreffe • this it a fufc
Ipenfion only of the copyhold, no cx-
tinguilhment.
So ifthe interruption be torciout, as
the Lord be difleiled,and this dilleilor
dieth felled , or if the land be recove-
red by falfe verdift , or erronious
judgement; and after the land is re-
i continued , it is not extinguilhcd,but
> may be granted arr ere by cop / ; for
Hon valet impedimentum quod de jure
• \ nonfirtitur q H »d c oatra It -
j I gem fit pro infedo habetnr. ‘ — 1
] j And fo I conclude with copyhol-
i | ders, wilhing that there may ever be
a perfeft' union betwixt them and
t ' their Lords , that they may have a fee-
c ling of each others wrongs and in ju-
t ries ; that their fo little common
It wealth , having all his members knit
tj together in compieate order , may
flourilh to the end.
- ‘U ^XUUilO*^
And in the time of their vilitation, * they Dcur. S. 2 . ■
111 (bine , and runne to and fro like fparks llOr,wtrt.
.long the ftubble . * Mattie -
8 They * fhall judge the nations , and have * Matth.i*,
(minion over the people, and their Lord (hail 2 3.
gnfc for ever, 1. Cor^.a.
9 They that put their truft in him (hall un-
land the truth: || and fuch as be faithfull in |Or ,&idfuch
(hall abide with him : for grace and mercy *? l *farthfull
1 his faints, and h h^fhcrr' '-rhiseleft. 'fiS
10 But the * ungodly (nail be puniflif d ac- love.
tding to their own imaginations , which * Matth» 25,
c negieded the righteous, andforfaken the 41 '•
ird.
,n Forwhofo defpifeth wifdome and nur-
e, he is miferable, and their hope is vain,
ir labours unfruitfull , and their works un-
fitable.
'ira Their wives are || foolilh, and their chil- flOr,%&f,©r
fl wicked. m ujTchafi *
j TWu oitspring is curfed : wherefore
fed is the barren th^t js unde filed 1 which
h not known the ■■ ,
e fruit in the vifitation of fouls.
4 And bleffed is the * eunuch, which with * Ifa.s^- 4 * 5 ,
hands hath wrought no iniquity, nor ima-
ed wicked things againft God : for unto
afhall be given t the fpeciall gift of faith, T< 3 *
iia inheritance \\ in the temple of the Lord B 0r ,
pte acceptable to his minde. the f eoplt.
i; For glorious is the fruit of good labours:
lithe root of wifdome (hall never fall away.
16 As for the children of adulterers, they dial!
come to their pcrfedion, and the leed of \\Or,lep*r-^
[unrighteous bed thill be rooted out.
17 For though they live long, yet fhall they *
nothingtegarded: and their laft age fhall be
ithout honour,
Ggg i 18 Or.,
V5
y
^nnc^^^ranSing not tait, they Ifi
t ww ^7 •* ^j ccn yyit^ the winde : and though the fojl^
of windes they (hall be rooted S&t.
f GV'fhtfr,
*GCR.f. 24 »
Kebr.u.;^
f The unperfeft branches (hall be brok^
off, their fruit unprofitable , not ripe to ca : ■
yea, meet for nothing.
6 For children begotten of unlawful! ]bt(M
arewitneffes of wickedneffe agciinft their pii
rents in their trial 1. M
7 But though the righteous be preverilL
with death: yet (hall he be in reft.
8 For honourable age is not that whit::
mdeth in length of time , nor that is meafi*
red by number of yeares.
9 But wifdome is the gray hair untomei f
and an unfpotted life is old age.
io * He pleafed God, and was beloved <6
him : fo that living among# Turners he w
tranflated.
i Yea, fpeedily was he taken away ,U
i z For the bewitching of naughtinefie,d<|ci
uuicure things that are honeft : and the wa :
f Gnpeyve/u dringof concupifcence , doth f undermine t
fimple mindc.
Bor yfantfifi- 13 He being made |j perfeft in a fhort tiir;
ed, or con - fulfilled a long time.
fummatecL p or f ou i pi ea fed the Lord : therefc-
bailed he io tafc him away from among tfc
wicked. j
i? This the people faw, and underftood-
not , neither laid they up this in their mind*
That his grace and mercy is with his fain:
and that he hath refped unto his chofen.
1 6 Thus the righteous that is dead fh)
condemnthe ungodly which are livings aj t
youth that is foon perfe&ed, the many year]
and old age of the unrighteous.
... f -;D^t€ous man ftand in great
Iffl 5 b , efore J the face «*&ch as § have
aftiictcd him, and made no account of his la
sbours. '
* Whc l n 1 tbe y fee k > ^ey (hall be troubled
with terrible fear, and (hall be amaaed at the
(trangenelTe of his falvacion } fo farre beyond
£ii that they looked for. ;
b„i A f n r Ihe y re f, e r ming ’, 3nd S ronin S for an-
fcuuh of fpirit,(liall fay within themfelves.This
was he whom we ^ had fometimes in dcrifion
and a || proverb ofreproch. ’,| 0r ...
i 4* We fools accounted his life nudnelTe- “ch^
andhisendtobe without honour. 5 Chap^.i,
y H°w is he nu !r , bred among the children
ot God, and his lot is amongthe faints?
6 T herefore have we erred from the Way of
huth and the light of righreoufnefle hath not
limed unto us, and the (unne of righteoufnefle
oft not upon us.
• 7 We II u ur iclvcs in the
Cite and defiru&ion.-yea we * ° r >#^
, rough deferts. v»Vi . have | gone our (elves, ot
ir the way of the Lord 5 we have not known it, ‘ ^
8 What hath pride profited u$?or what good
ath riches with our vaunting brought us?
9 All thofe things are Spiffed away like a *t.Chron.2*
ladow, and as a pofte that hailed by. y •
10 And as a fbip that paffeth over the waves
if the water,which when it is gone by, the trace
lereof cannot be found : neither the path- way
I the keel in the waves.
11 * Or as when a birdj|hath flown through *Prov.3o,T?i
[t aire, there is no token of her way to be ,jtietb.
ind, but the light aire being beaten with the
Dkcof her wings, and parted with the vio-
it noife & motion of them is pafled through,
^ therein afterwards no figne where (he
lent is to be found.
ii Or
r , r T -7\n0t*~ «j »^ra
^Therefore let us lie In wait for the figh-,
te0l Vco b :“at to ouTa^gs: he »bnft«h j
nr A . i „.,A.p T
* lobn 7 - 7 -
’Ephef. 5- I 3
*Ifa.J3-3>
'•“t H« ms »»a« » -o
lOufalfe
coin*
„ " He is ^ievous unto us even to behold:
for his life is nit like other mens,h« wayes are .
SSSsf" ;
prove what f hall happen in the en d of him
19 Let us * examine him with defpitefulj
nefle and torture, that we may know his mu
nefle, and prove his patience.
20 Let us condemn him with a fhamefi
death : for by his own faying he fhall be r6
fpe&ed.
ix Such things they did imagine, and were
deceived : for their own wickedneffe hat*
blinded them.
22 As for the myfteries of God, they knew
them not : neither hoped they for the wages f
f Gr. prefer- right eoufnefle : nor t difeerned a reward f
red or ejie^v- biamelefle fouls.
ed the reward z . p or God created man to be immorta
0,7. and^*. 1! an< * him to be an* ir
fcccl«si7*. 3*. eternity:
* Pfah **•
*Jcr.II.I£
: of his ow