THE COMPLEATE COPY-HOLDER.

Wherein is contained a Lear­ned Discourse of the Antiquity and Nature of Manors and Copy-Holds.

VVith all things thereto incident,

As.
  • Surrenders.
  • Presentments.
  • Admittances.
  • Forfeitures.
  • Customes, &c.

Necessary, both for the Lord and Tenant.

Together, with the forme of keeping a Copy-hold Court, and Court Baron.

By Sir EDVVARD COKE, Knight.

LONDON, Printed by T. Cotes, for W. Cooke, and are to be sold at his Shop, at Furnivalls-Inne Gate in Holborne. 1641.

TO THE READER.

THis Copy comming to my hands, perused, and reverenced by men learned in the Lawes. J thought most worthy of Publi­cation. The very name of the Composer, who hath beene an Ornament to our Kingdome, is enough to give it sufficient authority, and indeere it to every wise opinion. But the profit which doth attend, is most considerable, it being a subject so materiall, declaring the Antiquitie of Manors and Copyholds; [Page] and written for the good of Lords and Te­nants; and by consequence of all men: it cannot but receive a becomming entertaine­ment. In the confidence of this truth, J referre it to all judicious perusall, not a little congratulating my owne happinesse, to have beene an instrument of bringing so excel­lent a Piece from obscurity, for the benefit of the Common-wealth.

W. C.

MANORS AND COPY-HOLDS.

SECTION I.

THough a Manor and Co­pyhold have such mutu­all respect, and recipro­call reference one to the other, as that they are almost in nature of Re­latives, yet the know­ledge of the one cannot be attained unto, un­lesse the sense of the other be truely appre­hended: for a Manor is as the bodie, and Co­pyholds certaine members of this bodie. In [Page 2] this Treatise I will discourse of them seve­rally apart, and beginne with the Manor it selfe especially, when common reason teach­eth us, that totum magis illustrat partes, quam partes aliquae illustrant totum.

SEC. II.

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

SEC. III.

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

SEC. IV.

TH'other sort of their Demesnes was termed Folklands, because they passed by Polls, and were claymed and challeng'd by the Tenants; not by any assurance in Writings, but onely by the mouth of the people; Per vocem populi, and they in effect differed in nothing from Copy-hold Lands at this day.

SEC. V.

TOuching their Services, one sort of their Services were Servicia libera, which consisted most commonly in Render, as to pay yearly such a Rent, or in Vser, as where the Lord reserved Common for his Cattell, or in Prender, as where the Lord reserved three shillings, and foure loads of Estovers for fuell to be taken yearely in his Tenants grounds.

SEC. VI.

TH'other sort of Services, were Servitia villana, which consisted altogether in Fesance, as to scoure the Lords ditches, to tyle his houses, to thatch his barnes, or such like.

SEC. VII.

ANd in the reservation of these Services, the Lords had a speciall respect unto the qualitie of the Land, did they transferre their Bockelands, hoc est, Free-hold Lands, they would never reserve Villeine Services; did they transferre their Folk-lands, hoc est, Coppy-hold Lands, they would never re­serve free Services, but still they suited their Services according to the nature of the Land: the reason I gather was this, in those dayes none but men of good account and reckoning enjoyed the said Bock lands, where­as Holblands were in the hands of men of meaner sort and condition, and therefore had not the Lords care beene extraordinary in reserving apt Service they should have much wronged their Tenants;Lamb. in his explication of the Saxon word, Terra ex-scripta. and thus much Lam­bert verifieth, saying, Terra ex scripto fuit haere­ditaria, libera, at que immunis: terra vero sine [Page 5] scripto officiorū quadam servitute f [...]it obligata: priorem plerum que nobiles at (que) ingenui, posterio­rem vero rustici feri & pagani possidebant. Lambert termeth these Bocklands, Terras liberas atque immunes, non quod ab omnibus ser­vitiis fuerunt liberae aut immunes, sed quod te­nentes ipsi fuerunt liberi & servitiis tantum liberis onerati. But I much wonder, why this Bockland doth to this day retaine the name of Free-hold Land, sithence time hath bred such an alteration, that in the point of Ser­vice, a man can scarce discerne any difference betweene Free-hold Lands, and Copy-hold Lands. The favourable hand of time hath so infranchised these Copy-holders, that whereas in the Saxons time, their Services did consist wholly in Feasance; now they consist in Render, in Vser, and in Prender: as Free-holders Services did in those dayes: And on the other side, time hath dealt so un­favourably with Free-holders, and hath so abridged them of their former freedome; that if you compare the Service of the Free-holders, with the Service of the Copy-holders, Senties hunc potius quam illum fore liberum, How many Free-holders are there at this day, charged with base Ser­vices, as many (I doubt not) as there are Copy-holders? No marvell then that many [Page 6] able men turne Copy-holders, and many Pe­zants turne Freeholders; no marvell, I say, that men of all sorts and conditions, promis­cuously, both Free-holders and Copy-hol­ders, sithence there is such small respect had unto the quality of the Land in the reser­vation of our Services. Yet observe, I pray, though time hath so infranchised these Copy-holders, that they have in a manner shaken off all villaine Service; yet they retaine a badge of their former bondage, for they remaine still subject to their Lords will; therefore at this day they are termed Tenants at will: but with Free-holders otherwise it is, for they are not in that subjection to their Lords; per­adventure in this respect onely Bocklands may be termed Free-hold Lands, and Folk-land Villaine Lands; and yet time hath dealt very favourably with Copy-holders in this point of will, as well as in the point of Ser­vice.

SEC. VIII.

Bract lib. 4. Tr. 3. cap 9. numb. 5. Fleta lib. 5. cap 51.FOr, as I conjecture, in the Saxons time; sure I am, in the Normans time, those Co­py-holders were so farre subject to the Lords will, that eorum tenentes tempestive & intempe­stive pro voluntate Domini possent resumi & re­vocari, as Bracton, and Fleta both speake; [Page 7] the Lords upon the least occasion, sometimes without any colour of reason, onely upon discontentment and malice; sometimes a­gaine upon some sudden fantasticke humour, onely to make evident to the world, the height of their power and authority, would expell out of house and home their poore Copy-holders, leaving them helplesse and re­medilesse by any course of Law, and driving them to sue by way of Petition.

SEC. IX.

BVt now Copy-holders stand upon a sure ground, now they weigh not their Lords displeasure; they shake not at every suddaine blast of wind, they eate, drinke, and sleepe securely, onely having a speciall care of the mainechance (viz.) to performe carefully what duties and services soever their Tenure doth exact, and Custome doth require; then let Lord frowne, the Copy-holder cares not, knowing himselfe safe, and not within any danger, for if the Lords anger grow to expulsion, the Law hath provided severall weapons of remedy; for it is at his election, either to sue a Subpena or an Action of Tres­passe against the Lord. Time hath dealt very favourably with Copy-holders in divers re­spects.

SEC. X.

BVt I perceive my selfe rashly running into an inextricable Labyrinth, I will there­fore saile no longer in these unknowne coasts, but will hasten homewards, I will content my selse with this. I know amongst the Saxons th'essentiall parts of a Manor were knowne; but whether there then were the same forme of Manors which is at this day, that I dare not examine, for feare of being accounted more curious than judicious, and therefore leaving the Saxons, I draw some­what nearer home, and come to the Nor­mans, from whom wee had the very forme of Manors, which is observed amongst us at this present houre.

SEC. XI.

I Confesse indeede, that sithence the Ori­ginall creation of Manors, Time hath brought in some innovations and alterations, as in giving a large freedome unto Copy-hol­ders, both in the nature of their Service, and in the manner of their Tenure. Yet I may boldly say, that the selfe-same forme of Manors remaine unaltered in substance, [Page 9] though something altered in circumstance, Demesne termed in Latine Demanium, Doma­nium or Dominicum, is taken in a double sense, proprie, and improprie; proprie, for that Land which is in the Kings owne hands;Chopimus de demonio froute lib. 2. and the Chopimus saith, that Domanium est illud quod consecratum unitum, & incorporatum est regiae Coronae, take Domanium in this sense, and then you exclude all common persons from being seized in Dominico: for admit the King passe over the Demesne Lands, as soone as they come into a common persons hands, desinunt esse terrae Dominicales; for though the Kings Pattentee, hath the land granted to him, and to his Heires, yet comming from the King must necessarily be holden of the King, it is contrary to the nature of Demesne Lands to be holden of any; therefore though those Lands which commonly are termed ancient Demesne, viz. such Lands as were quondam in the hands of Edw. the Confessor, may properly be termed generally ancient Demesne, because they were in ancient time in the Kings owne possession, yet to terme them at this day the Lords Demesnes, or the Tenants Demesnes being severed from the Crowne is improper ca. qua super.

SEC. XII.

THen by this it appeareth that those lands are termed impropriè Demesne, which are in the hands of an inferiour Lord or Te­nants, nor can such a one in proprietie of speech be said to stand seized of any Land whatsoever in Dominico suo, but if you observe narrowly the manner of pleadings, the words are used in a proper sense, for you shall never finde that an inferiour Lord or Tenant, will plead that he is simply seized in Dominico, but still with this addition, in Dominico suo ut de feodo, and that very aptly, for this word Fee implieth thus much, that his estate is not absolute, but depending upon some superior Lord: therefore I conclude with the Feudists, that a common person may aptly be said to stand seized in Feodo, or in Dominico suo ut de seod. but improperly in Dominico simply; the King è converso may properly be said to stand seized Dominico simply, but in Feodo improperly, or in Dominico suo ut de feodo. Bracton divideth these Demesne Lands into two branches; under the first are compre­hended those Lands which the Lord injoyeth in his owne possession; under the second, those Lands which are in the hands of the in­ferior [Page 11] Copy-holders: His words are these, Dominicum dicitur quod quis habet ad mensam suam & idcirco Anglice vocat. Bordland; Bract. lib. 4. tract. 3. cap. 9. numb. 5. dici­tur etiam Dominicum villinagium quod tradi­tur villanis, quod quis tempest [...]ve & intempe­stive resumere possit, pro voluntate sua & revo­care.

SEC. XIII.

Fleta agreeth with Bracton in this division,Fleta lib. 5. cap. 5. and unto these two he addes more sorts of Demesne Lands: His words are these; Dominicum est multiplex; est autem Dominicum proprie terra ad mensam assignata & villinagi­um, quod traditur villanis ad excolendum, quae tempestive, & intempestive pro voluntate Do­mimi & poterit revocari sicut est de terra commissa tenend quādiu cōmissori placuerit: po­terit & dici dominicū de quo quis habet liberum tenementum alius usum fruct. & etiam ubi quis habet liberum tenementum aliter curam de cu­stode dicipoterit & curatore quorū unus dicitur ab homine, alius in jure, Dominicum etiam dicitur ad differentiam ejus quod tenetur in servitio. Dominicum denique est omne illud tenemen­tum de quo antecessor obiit sesitus, nec refert, cum usu fructu vel sine, & de quo si ejectus esset recuperare possit per assisam nove deseisme licet alius haberet usum fructū sicut dici poterit de il­lis [Page 12] qui tenent in villenagio qui utuntur & fruun­tur non nemine proprio sed nomine domini sui.

SEC. XIV.

THis opinion of Bract. and Fleta, bo h consenting in one, that Copy-hold Land is parcell of the Lords demesnes, wanteth not moderne authority to second it, for 15. Eliz. in the Excheq. I finde it adjudged in the case of a common person, howsoever it is other­wise in the Kings Case; That if the Lord of a Manor granteth a way, Omnes terras suas dominicales; the Copy holds parcell of the Manors passe by these generall words; neither doth this want Reason to confirme it; for in the time of Henry the 3. and E. 2. when Bract. and Fleta lived, Copy-holders were ac­compted meere Tenants at will, and there­fore after a sort their Lands reputed to con­tinue still in the Lords hands, and now, though custome hath afforded them a surer founda­tion to build upon, yet the Francke Tenement at the common Law, resting in the Lord, it can be no strange thing to place their lands under the rancke of the Lords demesnes. But to deliver my minde more freely in this point, I thinke that howsoever, according to the strict rules of Law, these Copy-holds are [Page 13] parcell of Lands demesnes, yet in propriety of speech (if propriety can be in improprie­ty) they are the more aptly called the Copy-holders demesnes; for though the Franke te­nement be in the Lord by the Common Law, yet by the custome, the inheritance abideth in the Copy-holders; and it is not denied, if a Copy-holder be impleaded in making tytle to his Copy-hold, he may justly plead, quod est seisitus in Dominico suo, with this addition, secundum consuetud. Manerii. Therefore I conclude, that howsoever the Common Law valueth the tytle of the Copy-holder, yet he hath such an interest confirmed unto him by Custome, that the Lord having no power to resume his Lands at your owne pleasure they are (though improperly) called (yet peradventure truly accounted) the Lords demesnes, and that in the eye of the world, howsoever it be in the eye of the Law, that these Lands alone can properly challenge the name of the Lords demesnes (if any Lands in the possession of inferior Lords, may pro­perly challenge that name) which the Lord reserveth in his owne hands, for the mainte­nance of his owne Boord or Table, be it his waste ground, his arable ground, his pasture ground, or his medow; be it his Copy-hold which he hath by escheate, by forfiture, or [Page 14] by purchase, or be it any part of his Free­hold Land, of which I must speake a word by the way, not to prove that it is demesne, for manifesta probatione non indigentes, but to shew you in what sense it is taken, and how farre it extendeth.

SEC. XV.

A Freehold is taken in a double sense; ei­ther 'tis named a Freehold in respect of the state of the Land, or in respect of the state of the Law.

SEC. XVI.

IN respect of the state of the Land, so Copyholders may be Freeholders; for any that hath any estate for his life, or any greater estate in any Land whatsoever, may in this sense be termed a Freeholder.

SEC. XVII.

IN respect of the state of the Law, and so it is opposed to Copy holders, that what Land soever is not Copyhold is Freehold, and in this sense I take throughout this Dis­course.

SEC. XVIII.

THe name of Freeholders extendeth not onely unto Lands held per servitium mi­litare, as it did by th'ancient Lawes of Scots; Skens. de verb. sign. tit. milit. and amongst whom Freeholders were knowne by the name of milites, but it reach­eth likewise to lands holden per servitiū Socae, whether in libero Socagio, or in villano Socagio: Liberum Socagium is, where any Tenant holds of any Lord by paying yearely a certaine summe of money in lieu of tillage, and such like services, and not by escuage; and this is termed sometimes common Socage.

Socagium villanum is where the ancient services of carrying the Lords dung into the fields,Stat. 37 H. 8. Cap. 20. It is so called. of plowing his ground at certaine dayes, of plashing his hedges, and such are not turned into money; but remaine still un­altered; and if you doubt that such Land as is held per villanum Socagium cannot come within the compasse of Freehold Land: for your satisfaction, reade Bracton, lib. 2. cap. 8. num. 8. Hactenus de primo defunctionis membro ad secundum properemus & pauca de servitiis Do­mino debitis periractemus.

Services in individuo are manifold, in specie threefold. 1. Corporall services. 2. Annuall [Page 16] services. 3. Accidentall services.

Corporall services are of two sorts; Servi­ces of Submission, services of Profit.

SEC. XIX.

SErvices of Submission, are homage and fealty, which are certaine Ceremonies used among tenants, whereby they submit themselves unto their Lords, and binde themselves by solemne oath, or by faithfull promise, from that day forward to become the Lords men for life, for member, for ter­rene honour, or adminimum, to owe unto him faith, for the Lands which they hold of him. Both these Ceremonies are used at the first entrance or admittance of any Tenant, and both tend to one end, viz. to inforce eve­ry Tenant to acknowledge and confesse him­selfe Tenant unto his immediate Lord, yet they differ in many materiall points.

SEC. XX.

IN regard of their severall manner of per­formance: for in doing fealty, the Tenant taketh a solemne oath, in doing homage only giveth his faithfull promise; and thence it is that fealty is accounted the more sacred ser­vice, [Page 17] though homage be the more humble service, and performed with farre greater re­verence than fealty in many respects, for in doing homage, the Tenant kneeleth, in do­ing fealty he standeth; in doing homage, the Tenant must remaine uncovered; in doing fealty, he may remaine covered; in doing homage, the Lord kisseth his Tenant, in do­ing fealty he kisseth him not. Lastly, in doing homage, the Tenant promiseth to become the Lords man for life, for member, and ter­rene honor. In doing fealty he onely swea­reth to become the Lords faithfull Tenant: the reason of this difference I learne to be this,Skens. de verb. signum Ho­mage. because homage especially concerneth service in warre, & properly appertaineth un­to Knights service; but fealty chiefely con­cerneth service at home, and properly apper­taineth to Socage tenure; and though now 'tis held, that a Tenant by Socage may doe homage, and that homage ex se maketh Socage tenure, and not Knights service; yet originally homage was invented for Tenants by Knights service, and such as were bound by their tenure to attend their Lords in the warres; but fealty was primarily devised for Tenants in Socage, and such as were bound by their tenure to manure the Lords ground, and carefully to discharge all rurall affaires; [Page 18] and this agreeth with the ancient Lawes in Scotland, for amongst them none were ac­counted Freeholders, but onely Tenants by Knights service, and consequently none but they could doe homage; and therefore marvell not why in doing homage, the Te­nant promiseth to become the Lords man for life, for member, for terrene honor, in doing fealty hee onely sweareth to become the Lords faithfull Tenant.

2. They differ in regard of the persons to whom they are performed, and that two wayes. In respect none is capable of recei­ving homage, but the Lord in person, but the Lords Steward, or his Bailiffe is capable to receive fealty in the Lords behalfe. 2. In re­spect that a Lord who hath but an estate for his life in his Seigniory cannot receive ho­mage, but such a Lord may receive fealty.

3. They differ in regard of the persons to whom they are performed, and that two wayes. 1. In respect th t no Copyholder is capable of doing homage, but he is of doing fealty, witnesse common experience. 2. In respect that a Tenant for life or yeares, is un­able to doe homage, for tis a ground in Law, that none can doe homage but tenant in fee-simple, or ad minimum, tenant in tayle.

SEC. XXI.

BVt a Tenant for life or yeares,Brudnal and Yoxley 5. H. 7. The Justices of the Com­mon Place, 10. H 6. held, that Lessee for years cannot doe fealty. are both able to doe fealty, according to Little­tons rule, that fealties are incident to every tenure, except tenures in Franck-almoigne, and tenants at will, contrary to some erroni­us opinions, they differ in regard that ho­mage can be but once done unto one Lord by the same Tenant; and therefore 'tis agreed, that if Lands descend unto me, which is hol­den of I. S. by homage, and I doe unto him homage, and after other Lands descendeth unto me by another Ancestor, which is hol­den of the same Lord by homage, I shall not doe homage againe, but fealty onely, because I cannot twice become the Lords man; but the selfe-same Tenant may severall times doe fealty unto the selfe-same Lord; and there­fore if a Copyholder surrendreth Whiteacre unto me, for his Whiteacre I should doe fealty unto the Lord. If after another sur­rendreth unto me Blackeacre, I shall doe feal­tie likewise unto the same Lord. And thus much for services of Submission,

SEC. XXII.

SErvices of Profits are of two sorts tending to the publique profit of the Common­weale, as when the Lord injoyneth his Te­nant to amend high wayes, to repaire de­cayed bridges, or similia. 2. Tending to the private profit of the Lord, as where the Te­nant is injoyned to be the Lords Carver, Butler, or Brewer, or is tyed to payle the Lords Parkes, to tyle the Lords Houses, to thatch the Lords Barnes, and similia. And thus much for corporall services.

Annuall services are in number infinite, in nature all one, for they all tend to th'increase of the Lords Coffers, and are reserved in their duties, as well for Copyhold. Land, as Freehold-Land; though in the Saxons time, and long after the Conquest, they were ne­ver, or seldome reserved for Copyhold-Land, but onely for Freehold-Land. I will not enumerate many particulars of annuall services, for that were as endlesse, as num­bring the sands of the Sea; onely this I say, that those annuall services which here come within the compasse of my meaning, consist all in Render, none in Feasance, for those annuall services, as well as accidentall servi­ces, [Page 21] which consist in Feasance, I comprehend under corporall services; thus leaving both corporall services and annuall, I bend my course towards accidentall services, which before I begin to particularize, observe these two things by the way:

1. That accidentall services differ from corporall and annuall services in this, that most accidentall services are incident to the Fee, and are due wi [...]hout speciall reservation of the Lord; but most corporall services, and all annuall services are due upon speciall re­servation, and are not incident unto the Fee.

2. That service is taken in a double sense, in strictiori sensu, and in latiori sensu; In stri­ctiori sensu, and in that sense the Feudists de­fine, servitium fore munus obsequii clientelario, &c. that duty which the Tenant oweth unto his Lord, either in performing some corpo­rall function, or in discharging some annuall payment. In latiori sensu, and so it signifieth any duty whatsoever accruing unto the Lord, by reason of his Seigniorie; and in this sense, these accidentall services follow­ing (which prima facie, may seeme better to ranke under the title of jurisdictions, or ra­ther under the name of the fruits of a Manor) may very fitly be reduced to this kinde of services.

The services I ayme at, and which I meane to treate of particularly in this place are these following,

  • 1. Wardships.
  • 2. Herriots.
  • 3. Reliefes.
  • 4. Amerciaments.
  • 5. Forfeitures.
  • 6. Escheates.

Now touching every one of these apart, and first with Wardships.

SEC. XXII.

VVArshipp. est custodia heredis infra aetatem existentis, Polidore Virgil saith, that this was novi vectigalis genus excogita­tum, to helpe, Hen. 3. being oppressed with much poverty, by reason hee received the Kingdome greatly wasted by warres of his Ancestors, and therefore needing extraordi­nary helpe to uphold his estate, the use of Wardships was set abroach. But the 33. Chapter of the grand Customary maketh mention of this to have beene used among the Normans, immediatly after the erection of Manors, and that the use of Wardships was a foote before H. the thirds time, as ap­peareth manifestly by Glanvil, who writeth [Page 23] very largely in many places in his Booke,Fleta. lib. 5. cap. 5. and lived in H. the seconds time; Guardians are either termed Custodes, or Curatores, Cu­stodes a lege, curatores ab homine, as Fleta speaketh. The Civilians make three sorts of Guardians, Tutor testamentarius. 2. Tutor a-Praetore datus. 3. Tutor legittimus: This in every point agreeth with our Common Law, so wee have Tutorem testamentarium, viz. where a man possessed of certaine goods and chattells demiseth these unto his child, and withall, committeth the care of his childs body, and disposition of his substance unto some friend, this committee is Tutor testa­mentarius, unto whom belongeth the care and custody of the childs body, and the disposi­tion of his substance, untill hee accomplish the full age of foureteene yeares, and then im­mediatly hee shall be out of Ward for his body, but his goods may be kept longer, for as for them they shall remaine in the trustees hands, so many yeares as the Testa­tor appointed by his last Will and Testa­ment: for though it be not in the Fathers power to restraine the libertie of his childs bodylonger then to the age of 14. yet the disposing of his goods he may commit to a­ny, for as long time as himselfe shall thinke expedient: So by the Stat. 32. and 34. H. 8. [Page 24] If a man be seised of Socage Lands, not hol­den of the King in Capite, hee may by his last Will and Testament commit the orde­ring of Theoglands, to what friend soever, for as many yeares as shall seeme most con­venient, and that friend is Tutor testamentari­us, otherwise it is of Lands holden by Knights service; for it is not in any mans power by his last Will and Testament, to deprive the Lord of that duty which, de jure, be­longeth to him, and therefore if a Copy­holder dieth, his heire under the age of four­teene. In regard that this priviledge of ap­pointing the heires a Guardian for their Co­pyhold Land, untill he accomplish the age of fourteene, de jure, appertaineth unto the Lord. It seemeth that the father cannot prejudice the Lord in this kinde, by appointing him an­other Guardian by his last Will and Testa­ment; haec de Tutore testamentario. 2. Wee have Tutorem a Praetore datum, viz. where a man deviseth goods unto his childe, and ap­pointeth him not Guardian, then it is in the Ordinaries hand to commit the ordering of the Infants goods unto some trustie friend, unto the age of foureteene; at what time the Infant himselfe may chuse a Guardian: for it is a rule in the Civill Law, Invito curator non datur, and this Committee est Tutor a Praetore [Page 25] datus. These Guardians termed amongst the Civilians, Tutores a Praetore dati, are common­ly called Guardians, pur nurture; and thus in words we somewhat differ, in matter nothing. 3. We have Tutorem ligi [...]t [...]mum, viz. where the interest doth de jure belong unto any, without the nomination of a private person, or the appointment of any publique Officer: and this Guardian is twofold, either ligiti­mus jure naturae, or ligi [...]imus jure Comuni; ligitimus jure naturae, as where the Father or the Mother hath the Wardship of their heires apparent, be it heire male or female: Ligitimus jure comuni; and that Guardian is twofold, either Guardian in Chivalrie, or Guardian in Soccage; Guardian in Chivalry is, where any Tenant seized of Land, holden by Knights service dieth, his heire male under the age of fourteene, and unmar­ried; then shall the Lord have the Ward, both of the Lands, and body of this heire male, unto the age of 21. because the Law intendeth, that before that age, the heire is unable to performe Knights service, accor­ding to the tenure; but the heire female shall be in Ward, no longer than to the age of six­teene, because the heire female, though shee her selfe be unable to performe Knights ser­vice, [Page 26] yet at sixteene, she is able to take a hus­band, who in her behalfe may doe Knights service; and therefore at those yeares shee shall be out of Ward; nay, sometimes shee shall be out of Ward before sixteene; and that is either, where shee is married at the death of her Ancestor, or where shee is any whit above fourteene: when her Ancestor dieth in neither of these Cases shall she be in Ward at all; for though the Stat. of W. 1. cap. 11. giveth unto the Lord two yeares next en­suing the fourteenth, yet that is to be under­stood, where shee is under the age of four­teene, and unmarried at her Ancestors death, and not otherwise. This for Guardian in Chivalry. Guardian in Socage, is, where a­ny one seized of Socage Lands dieth, his heire under the age of fourteene, then the next friend unto the heire, to whom the in­heritance cannot descend, shall have the Ward of the heires body, and of his Land, untill the age of fourteene, as if the Land des­cendeth unto the heire by the fathers side; then the mother, or next cosin of the mothers side shall have the Ward; and if the Land descendeth to the heire by the mothers side, then the father, or next cosin on the fathers side shall have the Ward. To conclude, ob­serve this difference betweene Guardian in [Page 27] Chivalry, and Guardian in Socage, that thē one receiveth the commodities of the Land to his owne use, without giving any account; th'other onely to the use of the heire, to whom he shall be accountable whensoever it shall please the heire to call him to account after th'age of foureteene. Thus much con­cerning Wardships; a word concerning Her­riots.

SEC. XXIV.

HErriot, or Harriot commeth of the La­tine word herus, Dominus, because it is a duty appropriated to the Lord; or it is de­rived from the Saxon word here exercitus, because in the Saxons time, when the name of Herriot was first knowne, Herrior signified nothing else but a tribute given to the Lord for his better preparation towards warre, as a horse trapped, or a speare, or armour, or a sword, or some suchlike Military weapon; and therefore in this sense importing a thing ap­pertaining to the warre, and being due unto the Lord, by reason of this service which Tenants owe unto their Lords, many warlike imployments,Vide Lamb. in h [...]s explicati­on of Saxons words, tit. Her­riot. it may very fitly be derived from hence: This their Herriot among the Saxons little differed from our Reliefe at this [Page 28] day, howsoever now they differ ex diame [...]ro: But let us examine the nature of our Her [...]iots at this day, and not search into the nature of their Herriots in those dayes; for that were to examine the nature of Reliefes not Herri­ots. Britton thus speaketh; A Herriot is a Render,Britton. cap. 69. made at the death of a Tenant to his Lord, of the best beast found in the possession of the Tenant deceased, or of some other, ac­cording to the ordinance and assignment of the party deceased to the use of the Lord, which toucheth not the Land at all, nor the heire, nor his inheritance, neither hath any cōparison to a Relief, for it proceedeth rather of grace and good will, than of right, and ra­ther from villaines, than freemen: to this ef­fect speaketh Fleta, Fleta lib. 4. cap. 28. Herriottum est quaedam praestatio ubi tenens, liber vel servus in morte sua dominum suum respicit de meliori averio suo vel de seeundo meliori, quae quidem praestatio magis, fuit de gratia quam de jure & nullam habet comparationem ad relevium eo quod heredi non continget quia factum antecessoris.

This our Herriot is twofold; Herriot Ser­vice, Herriot Custome; Herriot Service, is that Herriot which is never due, without spe­ciall reservation, and is seldome reserved up­on any lesse estate, than an estate of inheri­tance. Herriot Custome, is that Herriot [Page 29] which is never due upon speciall reservati­on, but is challenged upon some particular Custome, and is usually payd upon an estate for life, and for yeares, as well as upon an estate of inheritance. Touching the originall of these Herriots, doubtlesse they are not of that antiquity which the name doth promise, for though among the Saxons, the name of Herriot was knowne, yet the nature of both these, Herriot Services, and Herriot Custome, was utterly unknowne, untill the comming of the Normans; who immediately upon the Conquest changed the name of the Saxons Herriot, and termed it by the name a of Re­liefe, leaving notwithstanding some d [...]ffe­rence betwixt them, for where the Saxons Herriot, consisted usually in the payment of some military weapon; our Reliefe in those dayes consisted wholly in the payment of a certaine summe of money, and presently after the Normans had thus wholly altered the name, and somewhat altered the nature of the Saxons Herriot, then upon the parcelling of their lands unto inferior Tenants, they inven­ted this new kinde of service unknowne a­mongst the Saxons, and termed it by the name of the Herriot Service, afterward, up­on the infranchisement and manumission of certaine villaines; these Herriot Customes, were given to the Lords as a continuall, future [Page 30] gratulation: so that originally, as Britton, and Fleta well note, they were granted meerely, ex gratia, but now time hath effe­cted it, that they are challenged, ex debito. Thus much of Herriots; a word of Re­liefe.

SEC. XXV.

REliefe is a certaine summe of money which every Freeholder payeth unto his Lord,Gl [...]v. lib. 7. cap 9. being at full age at the death of his Ancestor, which in effect foundeth all one, with these words of Glanvil, Haeredes majores statim post decessum antecessorum suorum pos­sunt se tenere in haereditate sua licet Domini possint feodum suum cum herede in manus suas capere: ita tamen moderate id fleri debet, ne ali­quam disseisinam haeredibus faciant, possunt enim, haeredes si opus fuerit, violentiae Dominorum re­sistere, dum tamen parati sunt Relivium altare­tro servitia eis inde facere; with this agreeth the definition of Hotoman, Hotoman Com­ment. de verbo seod & verbo Relivium. Relivium est ho­norarium quod novus vassallus introitus causâ patrono largitur quasi morte usuali altius vel a­l [...]o quo casu feodū ceciderit quod jam a novo sub­levatur. This reliefe by the ancient Civill Law was termed Introitus; and Vincentius termeth it Praestantionem seu saluationem fa­ctam [Page 31] pro confirmatione seu renovatione possessi­onis, and that very aptly: for indeede Re­liefe is the key, which opens the gate to give the heire free passage to the possession of his inheritance. Bracton giveth this reason why it is called a Reliefe,Bracton lib. 2. cap. 86. Quia haereditas quae jacens fuit per antecessoris decessum Releviatur in ma­nus haeredis & propter factam relevationem fa­ciend. erit ab haerede quaedam praestatio quae dici­tur Relevium. Skene de verbo signum tit. Re­liefe. Skene fondly imagineth that it taketh his name, a relevando, in another sense; for saith he, Reliefe is given by the Te­nant or Vassall, being of perfect age, after the expiring of the Wardship, to the Lord, of whom he held his Land by Knights service, it is by Ward and Reliefe, and by payment thereof he relieves, and as it were, raiseth up againe his lands after they were fallen downe into his superiors hands; by reason of Ward­ship.Glanvil lib 9. cap. 9. But these words of Glanvil will serve to convince him of error; Ta [...]dam vero eode [...]ad aetatē pervenie [...]te, & facta e [...] haereditutis restitu­tione quietas erit a Relivio ratione custodiae: this Reliefe is twofold. 1. Reliefe Service. 2. Reliefe Custome: Reliefe Service, is that which is paid upon the death of any Free­holder. Reliefe Custome, is that which is paid upon the death, change, or alienation of any Freehold, according to the Custome of [Page 32] the place, in many places halfe a yeares pro­fit, in many places a whole yeares profit, and therefore where Bracton saith; Quod dat Do­mino Relevium qui succedit jure haereditatis, non autem is qui acquirit; that is to be taken with this caution; nisi illud etiam consuetudine, praestare debet qui acquirit. These Reliefes are paid, as well for lands-holden in Soccage, as Lands holden by Knights service: for lands holden in Soccage in this manner. If a Tenant in Soccage die, his heire above the age of fourteene, then shall the heire double the Rent that his Ancestors was wo [...] to pay to the Lord, as if the Tenant holdeth of his Lord by fealty and five shillings; then shall the heire double the Rent, and shall pay ten shillings, viz. five shilling [...] in the name of a Reliefe, over and above the five shillings, which hee payeth for his Rent. For Lands holden by Knights service in this manner; if a Tenant by Knights service dieth, his heire of full 21. if he holdeth by an intire Knights Fee, hee payeth five pound, if by halfe a Knights Fee, then he payeth fiftie shillings, if by a quarter of a Knights Fee, hee payeth 25. shillings, and so proportionably, who so holdeth more, payeth more, and who hol­deth lesse, payeth lesse; yet for the fuller ap­prehension of the quantity of a Reliefe: let us [Page 33] examine what a Knights Fee signifieth. A knights Fee, is so much land as in ancient time was accounted a sufficient living for a Knight, but whether this was rated accor­ding to the quantity, or according to the value, Causidici certant, & adhuc sub j [...]di ce lis est. Some hold according to the quan­tity, and that according to the severall com­putations used in severall places. A Knights Fee was either more or lesse; as in the Dut­chie of Lancaster: a Knights Fee contained foure hydes of land, every hyde foure carnes of land, every carne foure yard lands, every yard thirty acres; and every Knights Fee 1920. acres. According to other computations, a Knights Fee contained, 680; but according to most computations, a Knights Fee contained five hides of land, evey hide foure yard lands, every yard land 24. acres, according to which computation; a Knights Fee contained 480. acres: so that according to severall computations, a Knights Fee was more or lesse. Others hold, that a Knights Fee was measured according to the quality, not according to the quantity; according to the value, not according to the content: and amongst these, some hold that land to the value of fifteene pound par annum made a Knights Fee; and therefore,Camden in sua Br [...]tan. pag. Camden saith, that, Sub Henrich tertio quodammodo co­acti fuerūt equites fieri quot quot libras quindecē [Page 34] exannuis terrarum redditibus colligarunt; and out of Matthew Paris, hee writeth, that anno, 1256. Exit edictum regium preceptumque est & acclamatum per totum regnum ut qui haberet 16. libratas terrae & supradict. armis redimitus tirocinio donaretur, ut Anglia, sicut Italia mi­litia roboraretur, & qui nollent, vel qui non pos­sunt honorem status militaris sustinere pecunia se redimerent. Others hold, that census [...]que­stris, was fort [...]e pound revenue in Freehold land: and of this opinion is Sir Thomas Smith: Smith. de rep pag. 31, 32, 33. others held, that census equestris, was twentie pound revenue; and this opinion is confirmed by many authorities, and reasons cited in Anth. Lowes Case, by an ancient Treatise, de modo tenendi Parliamentum tem­pore Regis Edwardi filii Etheldred, where it appeareth, quod comitatus constabat ex viginti feodis unius militis quolibet feodo computato ad viginti libratas. Baronia constabat, ex 13. in feodis ac tertia parte unius feodi militis secun­dum computationem predicta unum feodum militis constabat ex terris ad valentiam 20. li. and therefore where the Statute of Ed. 2. d [...]militibus, provideth that a Knights Living shall be measured by the value of twenty pound per annum; this is but an af­firmance of the Common Law- 2. This is strengthened by the words of the Statute of [Page 35] W. 1. cap. 36. and by Fitch. Fitch. nat. B [...]e­v [...]um. fo 62. this seemeth something pregnant, for in both these places, Soccage land to the value of twentie pound par annum, are put in equipage with a Knights Fee. 3. In a Writ of mesne, brought per Ranul­phum de Normanvile petentem versus Luciam de Kyme tenentem P. 3. E. 1. appeareth, that twelve carnes of Land made a Knights Fee, every carne being in ancient time of the va­lue of five nobles per annum; according to which account, a Knights Fee amounted to twenty pound per annum. These are the se­verall opinions, touching the quantity of a Knights Fee, imbrace of these, which shall seeme most consonant to reason. For my owne part, I thinke that in the ancient time, a Knights Fee, was measured according to the number of the acres; but in those dayes, according to the value of the land: the rea­son of this alteration is; that though in anci­ent time, as well as in these dayes, some lands were farre more fruitfull than others; yet the value of every quantity of land was certaine­ly rated, according to the Custome of the places, and never upon any occasion was the land increased or decreased; and therefore were they to examine whether any man had a sufficient living for a Knight, they would looke no further than to the quantitie of his [Page 36] land, for by the quantitie, they could pre­sently judge the value; but now the value is not certainely rated in any place, but increa­seth and decreaseth upon every occasion; and therefore reason requireth, that in these dayes a Knights Fee, should be measured, accor­ding to the value, not according to the quanti­ty of the Land, for by reason of the different value of the land, one man may be better able to maintaine the dignity of a Knight, with two hundred acres in some place, and of some land, than another with foure hundred acres of other land. But howsoever it is, whether a Knights Fee be rated according to the value, or according to the quantity let it here rest.

Now give mee leave to examine at what time, and by what Law it was first provided, that for every Knights Fee, the fourth part of a Knights Revenue should be payd in the name of a Reliefe, viz. 5. li. for every Barons Fee, the fourth part of a Barons Revenue, viz. one hundred markes; for every Earles Fee, the fourth part of an Earles Revenue, viz. one hundred pound; surely Reliefes were paid in this manner, before the Statute of Magna Charta, Glan vil. lib 9. cap 9. and that is somewhat pregnant by this, that by the very words of that Statute. This Reliefe is termed Antiquum Relevium; and by Glanvil, who writ before the making of this Statute, this is some what manifest; for [Page 37] he speaketh to this effect, Dicitur rationabile relevium alicujus juxta consuetudinem regni de feodo unius militis centum solidos? de Socca­gio vero quantum valet, census illius Socca­gii per annum de Boronia vero nihil cer­tum statutum est quia juxta voluntatem & misricordiam Domini Regis solent Baroniae capital. de relevis suis Domino Regi sa­tisfacere: from whence I gather, that Statute of Magna Charta was in part an affirmance of the Common Law, in part an institution of a new Law.

Touching Reliefe paid by Knights, it was but an affirmance of the Common Law, because they were certaine before the Sta­tute. Touching Reliefes paid by Barons, it was an institution of a new Law, because they were before uncertaine; and the rea­sons why Dukes and Vicounts, are not men­tioned in this Statute, as well as Earles, Ba­rons, and Knights is this, because when that Statute was made, there was neither Duke, Marquesse or Vicount in England. The first Duke that ever was in England sithence the Conquest, was the Blacke Prince, eldest sonne to Ed. the 3. The first Marquesse that ever was in England, was Robert Earle of Oxford, crea­ted by R. 2. and the first Vicount that ever was in England Dominus de Bello monte, crea­ted by H. 6.

But though at the making of this Statute, these dignities were unknowne, yet they are comprehended under the equitie of the Sta­tute, and according to their severall dignities shall pay Reliefe unto the King, a Duke two hundred li. a Marquesse two hundred markes, and so ratably and proportionably. But to conclude, let us compare Herriots and Re­liefes together, and observe in what they dif­fer.

1. They differ in this, that a Herriot lieth in Prender, and a Reliefe in Render. 2. In this, that a Herriot is paid in the name of a Tenant deceased; but a Reliefe in the name of an heire, who is become Tenant. 3. In this, that Heriots are paid by Copyholders, as well as Freeholders; but Reliefe by Free­holders only. 4. In this, that Herriots are ever due upon a speciall reservation, or upon some particular Custome; but Reliefes are inci­dent to the Fee, and are due without reserva­tion or Custome, contrary to the opinion of Vincentinus, who holdeth a Reliefe extrinse­cam fore praestationem & non in esse feodo. Thus much touching Reliefes, a word touching Amerciaments.

SEC. XXVI.

AMerciament is a Pecuniarie punishment for any offence committed against the Lord of any Manor, or (as some more at large define it) it is a certaine summe of mo­ney imposed upon the Tenant by the Ste­ward by oath, and presentment of the ho­mage; for the breach of any by Law made, either for the profit of the whole Kingdome, or for the benefit of the little Common­wealth among themselves, or for default of doing sute, or for other misdemeanors, pu­nishable by the same Court, infinite in num­ber and quality; and this word Amerciament taketh his name frō being in the Lords mercy, to be punished more or lesse at his will and pleasure, and it differeth from a Fine in di­vers respects.

In that whosoever is fined may lawfully be imprisoned, but whosoever is a mercied can­not. 2. In this, that Amerciaments are inci­dent unto Court Barons, as well as unto Court Leets, and Fines are never incident to any Court Barons, but to Court Leets onely, or other Cou ts of Record. 3. That Amer­ciaments are incident unto every Manor whatsoever; but Fynes are incident unto some [Page 40] few Manors onely: the reason of this diffe­rence is partly grounded upon the former difference; for sithence Amerciaments are incident unto every Court Baron, and Court Barons are incident unto every Manor: Se­quitur ex consequente, that unto every Manor amerciaments are incident, but ex adverso, Fines being incident unto Court Leets onely, and those Court Leets being in some few Manors onely, not in every Manor expresly sequitur, that Fines are not incident unto eve­ry Manor, but unto some few Manors onely. 4. In this, that Amerciaments are afferable Per pares, per sacramentum prob [...]rum & legalium hominū de viceneto qui secundū modū delicti ma­jori vel minori amerciamēto delinquent. mulctare possunt: but Fines are never afferable in this kinde; for looke what Fine soever the Court imposeth upon the delinquent, that bindeth sufficiently, without further afferance. Give me but leave to aske two questions, when had this afferance his first conception or cre­ation? 2. How may Amerciaments in Court Leets be discerned and distinguished from Fines imposed in the same Court, since they are both pecuniary punishments for offences committed? Touching the first question, I thinke this Law of afferance was before the Statute of Magna Charta; Glanv. lib. 1. cap. 11. for Glanvile thus [Page 41] speaketh of it, Est autem misericordia Domi­ni Regis, quo quis per juramentum legalium hominum de viceneto eatenus amerciandus est ne aliquid de suo honorabili contenen. amittat; and therefore by this appeareth, that this Stat. of Magna Charta, was but an affir­mance of the Common Law in this point of afferance. Touching the second question, know that 'tis not in the power of the Court to impose a Fine, or an Amerciament at their election for any offence committed, but still the quality of the punishment must necessari­ly sute with the qualitie of the offence, from the severall natures of offences committed, a­rise the severall names of punishments infli­cted. The offences in respect of the place are twofold, and in respect of the persons two­fold. In respect of the place, offences com­mitted, extra curiam, of which the Steward by no common possibilitie can have cogni­zance without the presentment of the ho­mage, and therefore the power of presenting them, and imposing punishments for them, belongeth unto the Jurors of the Leet, and not unto the Steward; and these punishments thus imposed are termed Amerciaments. 2. Offences committed in Curia, of which the Steward can take sufficient notice, with­out the helping hand of the homage, and [Page 42] therefore the punishments of these offences belong unto the Steward, not unto the Ju­rors, and these punishments thus imposed are termed Fines. Thus in respect of the place, offences are twofold. In respect of the per­son, they are likewise twofold: Offences committed by private persons. 2. Offences committed by publike Officers, and Mini­sters of the Court, in the administration of their office, punishments imposed for offen­ces of the former ranke are termed Amer­ciaments, of the latter ranke Fines, the one afferable per pares, th'other not; and the rea­son why the Statute of Magna Charta in this point of afferance, extendeth not unto any offences committed in Court by private Persons,Co. 8. Greislegt. Cafe. or publique Officers: neither unto any offences committed extra curiam, by publique Officers in administration of their Office, is this, because though the words of the Statute are generally extending unto all offences whatsoever; yet th'intent of the Statute makers was not to make the Ju­rors Afferors in omnibus delictis mulctandis, sed in iis tantummodo puniendis quorum cer­tam possint habere notitiam, Fleta lib. 1. cap. 98. & intelligen­tiam, as Fle [...]a speaketh, and therefore sithence the Steward hath more certaine no­tice of offences committed in curia by what [Page 43] persons soever then the Jurors have, and can better judge and discerne of the natures and qualities of offences committed, Extra curiam by publike Officers than Jurors can; therefore surely the intent of this Statute, was to leave the punishment of these offences, to the discretion of the Steward, and not the af­ferance of the homage. Thus much concer­ning Amerciaments: a word concerning For­feitures.

SEC. XXVII.

FOrfeiture commeth of the French word Forfaict, scelus, quia scelerum & delictorum perpetratio est forisfacturarum causa & origo. In our Language it signifieth the effect of transgressing, rather than the transgression it selfe, I meane, it signifieth the penalty for the offence committed, rather than the act it selfe, whereby the offence it selfe is perpetra­ted, and it extendeth both unto Lands and unto Goods; unto Lands, both Copyhold and Freehold.

Touching the causes from whence sprin­geth the forfeiture of Copyhold Lands. I shall have occasion to speake more liberally in another place, and therefore I will silently passe them over, speaking some few words [Page 44] touching the causes from whence Forfeitures of Freehold Land arise.

The causes are many, amongst the which I have observed. 1. That if any Freeholder alieneth his Land in Mortmaine, hee forfei­teth his Freehold. 2. If a Freeholder ceaseth for the space of two whole yeares, to per­forme such Services, or to pay such Rents, as he is tied unto by his Tenure, and hath not upon his Land sufficient goods or chattels to be distrained, he forfeiteth his Freehold. 3. If any Freeholder infringeth any conditi­on whereunto hee is tied, hee forfeiteth his Freehold.

Touching the causes from whence grow the forfeitures of goods, they are likewise in number many, and from the severall causes of forfeiting, goods arise severall names of goods forfeited. 1. If a Felon stealeth goods, and upon pursuite made, waiveth these goods, and leaveth them in any part of the Manor, and be not attached upon the fresh suite of the owner; then are these goods forfeited to the Lord, and are termed waives. 2. If any beasts are, found wandering in any place, and be proclaimed in three market Townes adjoyning, and are not claimed by the owner in a yeare and a day; then are the beasts for­feited to the Lord, who hath such a liberty, and are termed Estrayes. 3. If any suffer [Page 45] Shipwracke upon the Seas, and through the violence of the Waves, goods are cast upon the Shore; and being seized by the Bayliffe, are not claymed within a yeare and a day after the seisure; then are these goods forfeited to the Lord, who hath that Franchize, and are termed Wrecks. 4. If one come to a violent end, without the fault of any reasonable creature, then immedi­atley that thing which is the cause of that untimely death, becommeth forfeited un­to the Lord; and it is termed a Deodand; as this old Verse testifieth; Omnia quae movent ad mortem sunt Deodanda: as if a Horse striketh his Keeper, and killeth him: or if a man driveth his Cart, and seeking to redresse it, falleth, and the Cart wheele running over him, presseth him to death; or if one felling a tree, giveth warning to com­mers by to look to themselves, and notwith­standing warning given, some body is slaine by the fall of the tree, the Horse in the first Case; the Cart and the Horses in the second Case, & the Tree in the third Case, are forfei­ted to the Lord as Deodands: many other sorts of forfeited goods I might adde unto this, but I will forbeare to enumerate any more in this kind; and to speake more largely of these which I have already enumerated, for three speciall reasons;

[Page 46]1. Because they are duties accruing unto the Lord, not meerely from the Tenants, nor solely by the Act of the Tenants, but most commonly from strangers, and by the sole act of strangers, and therefore I confesse are not aptly ranked under the name of Services. 2. Because a perfect Manor may well subsist, without their assistance, since they adde no­thing to the perfection of the essence of a Manor. 3. because they are not incident un­to every Manor, but into such Manors onely as can challenge them, either by speciall pre­scription, or by Patent from the King; for primarily and originally these forfeitures of goods, belonged to the King for these rea­sons, especially, because what goods soever have no certaine owner knowne to challenge interest in them, as waives, estrayes, and wreckes, the propertie of such goods be­long unto the King, virtute praerogativae; and thus much Bracton intimateth, when he saith, Sunt alia quaedam quae in nullius bonis esse dicun­tur sicut wreccum maris, &c. & aliae res, quae Dominum non habent sicut animalia vagantia, & quae sunt Domini Regis propter privilegi­um marium: the reasons why Deodands are forfeited to the King, is this;

Deodands were originally invented for the pacifying of Gods wrath, and the appeasing [Page 47] of Gods anger, and these things thus forfei­ted, were according to the true intendment of the Law to be sold, and money distribu­ted among the poore; and therefore upon whom could the Law have better confer­red this benefit, or rather imposed this charge then upon the King, who representeth Gods person upon the earth, and whom the Law presumeth will deale more justly, and truely, nay, more liberally and bountifully with the poore in this kinde, than any inferior Lord, who peradventure out of his unchari­tablenesse, peradventure out of want, will be so farre from adding any thing to that which is due, that hee will rather unjustly sub­stract part, or unconscionably detaine the whole.

Since therefore, these Forfeitures of goods neither adde to the perfection of a Manor, neither are incident unto every Manor, to spend any further time a­bout a subject so superfluous would ill be­seeme this small Treatise, wherein the scope and end I ayme at, is this, onely to present to your view what things soever are necessarily requisite to the essence of every Manor, and what Services soever are incident unto every Manor: and thus much concerning Forfei­tures; a word concerning Escheats.

SEC. XXVIII.

EScheates cometh of the French word Echear excidere, & are termed excadentiae, which imports Lands fallen into the Lords hand for want of heire, generall or speciall to inherit them, but before the Lord enter into an Escheate in this kinde, the homage ought to present it, and being presented pro­clamation ought to be made to give notice to the world, that if any man come in, and justly claime, he shall be received; the ho­mage then finding it cleare intitle the Lord, as to Lands Escheated.

Besides this ordinary sort of Escheate, there is another sort of Escheate, and that is, where any Freeholder committeth Felony, and is attainted, the King shall have animum diem & vastum; and then it commeth unto the Lord as an Escheate; thus much concer­ning the nature of Services in generall, and there are so many particular Services in indi­viduo, that I might insist in millions more, but feare of incurring the censure of being over tedious, restraineth the forwardnesse of my hand: yet sithence occasion is so favoura­ble to me, I will presume so much upon your patience, as to lay open the severall remedies [Page 49] which the Law hath provided for the obtai­ning of those severall Services before men­tioned, if perchance they be wrongfully de­ceived by the Tenants; and for method sake, I will begin with corporall Services.

SEC. XXIX.

IF any Freeholder refuseth to do homage, or fealty, which are corporall Services of submission; or to mend high wayes, repaire decaied Bridges; or similia, which are cor­porall Services, tending to the publique pro­fit of the Common-weale, or to discharge the office of a Carver, a Butler, a Brewer, or such like; or to payle the Lords Parke, to tyle the Lords Houses, or to thatch his Barnes, or similia; which are corporall Servi­ces tending to the private profit of the Lord; If, I say, any Freeholder refuseth to do any of these Services, being bound unto them by his Tenure; then may the Lord lawfully di­streine his cattle or his goods, and detaine them untill satisfaction be given, by perfor­ming such Services as the Law doth require, and the same remedy which the Law hath provided for Corporall Services, is likewise provided for Annuall Services.

SEC. XXX.

FOr if any Freeholder refuseth to pay any annuall Rent, or to discharge any annuall payment, according to his Tenure; then may the Lord lawfully distreine and in a Replevin brought by the Tenant, may avow the di­stresse, and justifie the taking. But no action of debt will lye for these annuall Services, no more than for Corporall Services; for it is a ground in Law, that as long as the Rent continueth of any estate or Franke tenement, no action of debt lyeth for the arrearages of the Rent, nor for any other Service what­soever; and therefore if a Lease for life be made reserving rent, the Lessor cannot main­taine an action of debt for the arrearages of this Rent, as long as the estate continueth, but presently upon the determination of the estate an action of debt lyeth for the arrea­rages of the Rent incurred before the time of the determination: but what hath the Law provided no other remedy for those annuall Services, then a distresse? Surely no, before seisein, none, but after seisein once gained, 'tis at his election, either to distreine, or to bring an Assize: and thus much touching remedies for corporall and annuall Services.

SEC. XXXI.

ACcidentall Services are gotten by many differing meanes; By seisure onely, as the Wardship of the heires body together with the Waives, Estraies, Wreckes, Deo­dands, and such like forfeitures of goods. 2. By th'entry onely, as the Wardship of the heires Land, together with Lands forfeited to the Lord, either upon the breach of some condi­tion, or upon an alienation in Mortmaine. 3. By Seisure or Distresse, as Herriot Servi­ces, contrary to the opinion of some who held them gaineable by Distresse only, & not by Seisure, or action, as Herriot Customes; for upon the eloignement of the best beast, the Lord may maintain an action of deti­nue against the heire. 5. By entry, or action as Lands forfeited to the Lord, by the cessing of his Tenant, or Escheat, accruing unto the Lord, either upon the attaindeur or death of his Tenant without heire; in the first, the Lord may enter or maint [...]ine a Writ of Cessavit; in the secord, the Lord may enter or maintaine a Writ of Escheate. 6. By Di­stresse or Action, as Reliefes and Amercia­ments. For Reliefes the Lord may distreine, or bring an action of debt; neither doth this any whit impugne the former ground, that as long as the rent doth continue, &c. because in­deede Reliefe is the fruit and approvement [Page 52] of Services rather than any service, and for Amerciaments the Lord may either di­streine or bring an account of debt, other re­medy the Law hath provided against stran­gers, for detaining of these duties from the Lord, as to insist in one: if a stranger will de­raine the Wards body or the Wards land from the right Lord, a writ de recto de custo­dia terrae & heraedis lyeth against the stranger, but to meddle with strangers were to wander out of the little Common weale, and there­fore to keepe my selfe within my bounds and limits, I will here conclude, touching the two materiall causes of a Manor, viz. De­mesnes and Services: a word touching the efficient cause of a Manor, and then I will end the definition of a Manor.

The efficient cause of a Manor is expres­sed in these words, of long continuance, for indeede time is the mother, or rather the nurse of Manors; time is the soule that giveth life unto every Manor, without which a Ma­nor decayeth and dyeth, for tis not the two materiall causes of a Manor, but the efficient cause (knitting and uniting together those two materialll causes) that maketh a Manor. Hence it is that the King himselfe cannot create a perfect Manor at this day, for such things as receive their perfection by the con­tinuance [Page 53] of time, come not within the com­passe of a Kings Prerogative, and therefore the King cannot grant Freehold to hold by Copie, neither can the King create any new custome, nor doe any thing that amounteth to the creation of a new custome, and there­fore a composition made betweene the King and his Tenant, where he hath Herriot cu­stome to pay 10. li. in Levie thereof every time it falleth, is no binding composition: for this amounteth to the creation of a new custome. Et haec omnia & similia sunt temporum non regum seu principum opera, which fully verifieth the old saying, Plus valet vulgaris consuetudo quam regalis concessio, this is the sole cause why the King cannot create a per­fect Manor at this day, and this is the chiefe cause why a common person cannot create a perfect Manor, but not the sole cause; for there is this cause farther, a perfect Manor cannot subsist without a perfect tenure, be­tweene very Lord and very Tenant: but a Common person cannot create a perfect te­nure, and consequently cannot create a per­fect Manor, before the Stat. of Quia emptores terrarum, if any Tenant seized of Land in Fee simple had infeoffed a stranger, he might have reserved what services hee thought fit, or had he reserved no services, yet the [Page 54] Law would have imployed a perfect tenure, betweene the Feoffor and the Feoffee, for the Feoffee was to hold off the Feoffor by the same services, that the Feoffor held over on his Lord Paramount, but since this Statute, If a Tenant seised of Land in Fee, infeoffeth a stranger neither by the expresse reservation of the Feoffor, nor by the implyed reser­vation of the Law, can there bee a perfect tenure created at this day betweene the Fe­offor and the Feoffee; for the Feoffee shall hold immediately of the Lord Paramount not of the Feoffor, and further, as the King can doe nothing which amounteth to the creation of a new custome: so a common person can doe nothing which amounteth to the creation of a new tenure, and there­fore if there be Lord and Tenant by 10. s. rent, and the Lord will confirme the estate of a Tenant Tenend. by a Hawke, a paire of gilt spurres, a Rose or similia, this is a voyd confirmation; otherwise had it beene if the Lord had confirmed the estate of the Tenant Tenendum per 5. s. that had beene a good confirmation, because it tendeth onely to the abridgement of an old tenure, and not to the creation of a new, and as it is with a con­firmation, so it is with a composition upon the reason of this ground, it is, that if the Lord [Page 55] of a Manor purchase forraine land lying without the Precincts and bounds of the Ma­nor he cannot annex this unto the Manor though the Tenants be willing to doe their Services, for this amounteth to the creation of a new tenure, which cannot be effected at this day; And therefore if a man having two Manors, and the Lord would willingly have the Tenants of both these Manors to doe their sute and service to one Court, this is but lost labour in the Lord to practise any such union; for notwithstanding this uni­on they will be still two in Nature, howso­ever the Lord covet to make them one in Name, and the one Manor hath no warrant to call the Tenants to the other Manor, but every act done in the one to punish the offen­ders in the other is traversable; yet if the Tenants will voluntary submit themselves to such an innovation, and the same bee con­tinued without contradiction, time may make this union perfect, and of two distinct Manors in nature, make one in name and use: and such Manors peradventure there are thus united by the consent of the Tenants and continuance of time, but the Lords power of it selfe is not sufficient to make any such union, causa qua supra, But if one Manor hol­deth of another, by way of Escheate these [Page 56] two Manors may be united together, fortior enim est dispos [...]tio legis quam hominis. But in this, that I exclude common persons from being able to create a tenure, I may seeme to impugne many authorities which hold at this day, that a tenure may bee created by a common person, for to cleare this colour of contradiction, know that tenures are two fold. First imperfect, as where a man maketh a Lease for yeares or for life, or a gift in tayle, here is an imperfect tenure betweene the Lesso [...] and the Lessee, the Donor and the Donee; and this imperfect tenure I confesse may be created by a common person at this day. Secondly, perfect betweene very Lord and very tenant in Fee, and such a tenure a common person could never create since the Stat. of Quia Emptores terrarum, and con­sequently a common person cannot create a perfect Manor sithence, for without a perfect tenure a perfect Manor cannot subsist. Thus much touching the definition of a Manor, thus much I say touching the two materiall causes, together with the efficient cause. A word of another cause of a Manor which appeareth not in the defini [...]ion so ma­nifestly as the other causes doe, this is a cause which among the Logicians is termed, Causa sine qua non, and that is a Court Baron; for [Page 57] indeede that is the chiefe prop and Pillar of a Manor, which no sooner faileth but the Manor falleth to ground: if wee labour to search out the antiquity of these Court Ba­rons, we shall finde them as ancient as Ma­nors themselves. For when the ancient Kings of this Realme, who had all the lands of England in Demesne did conferre great quan­tities of land upon some great personages,Vide Lamb in his explication of Saxon words verbo Thanus. Bacon in his elements of the Law. fol. 41. 42. 43. with liberty to parcell the land out to other inferiour Tenants, reserving such duties and Services as they thought convenient, and to keepe Courts where they might re­dresse misdemeanors within their Precincts; punish offences committed by their Tenants, and deside and debate controversies arising within their jurisdiction; and their Courts were termed Court Barons, because in anci­ent time such personages were called Barons, and came to the Parliament, and sate in the upper house; but when time had wrought such an alteration, that Manors fell into the hands of meane men, and such as were farre unworthy of so high a calling: then it grew to a custome that none but such as the King would should come to the Parliament, such as the King for their extraordinary wise­dome or qualitie thought good to call by writ, which writ, ran hac vice tan [...]um, yet [Page 60] though Lords of Manors lost their names of Barons, and were deprived of that dignity which was inherent to their names, yet their Courts retaine still the name of Court Ba­rons, because they were originally erected, for such personages as were Barons; neither hath time beene so injurious as to eradicate the whole memory of their auncient dignity, in their name there is stamps left of their no­bility, for they are still intituled by the name of Lords. These Courts differ from Court Leets in diverse respects: In this, that Court Barons by the Law may be kept once every three weekes, or (as some thinke) as often as it shall please the Lord, though for the bet­ter ease both of Lords and Tenants, they are kept but very seldome; but a Court Leete by the Statute of magna Charta is to bee kept but twice every yeare; one time within the moneth after Easter,Magna Charta C. 35. 31. E. 3. Ca. 15. and another time with­in a moneth after Michal. 2. In this, that Court Barons may bee kept in any place within the Manor, (contrary to the opinion of Brian.) But a Court Leete by the Statute of Magna Charta, is to be kept in certo loco ac determinato, within the Precinct. 3. In this, that originally Court Barons belonged unto inferior Lords of Manors, but Court Leets originally belonged unto the King. 4. In [Page 61] this, that Court Barons are incident unto e­ [...]y Manor, so that every Lord of a Manor may keepe a Court Baron, but few have Leets; for inferiour Lords of Manors cannot keepe Court Leetes without speciall pre­scription, or some speciall Patent from the King. 5. In this, that in Court Barons the suitors are Iudges, but in Court Leets the Steward is Iudge. 6. In this, that in Court Barons the Iewrie consisteth oftentimes of lesse than twelve, in Court Leets never; the reason of that is, because none are impanel­led upon the Iewrie but Freeholders, in Court Barons of the same Manor, but in Court Leets strangers are oftentimes impa­nelled. 7. In this, that Court Barons cannot subsist without two suitors adminimum but Court Leets can well subsist without any suitors. 8. In this, that Court Barons en­quire of no offences committed against the King, but Court Leetes inquire of all offen­ces, under High Treason committed against the Crowne and dignity of the King. In many other respects they differ, as that a writ of errour, lyeth upon a judgement given in a Court Leete, but not in a Court Baron. So in a Court Leete a Capias lyeth, but in a Court Baron in steade of a Capias is used an Attachment by goods; So in a Court Ba­ron; [Page 60] an action of debt lyeth for the Lord him­selfe, because the suitors are Judges, but in a Court Leete the Lord cannot maintaine any action for himselfe, because the Steward is Iudge; but omitting these with many more, I come to the Etymologie of a Manor. Some derive the word Manor a manendo, and then it taketh his name either from the Manor-house which the Lord maketh his dwelling place, or else a manendo quia Dominus ac te­nentes in Manerii sui circuit cohabitant ac ma­nent. Some thinke tis termed Manor from manuring the ground, and then it taketh its name either from the Lords Demesnes, which the Tenants are bound to Manure, or else from the Land remaining in the Tenants hands, which are likewise tilled and manu­red; others are of opinion that it is derived of the French word mesner, which signifieth to governe or guide, because the Lord of a Manor hath the guiding and directing of all his Tenants within the limits of his jurisdi­ction, and this I hold the most probable Ety­mologie and most agreeing with the nature of a Manor: for a Manor in these dayes sig­nifieth the jurisdiction and royalty incorpo­rate, rather than the Land or Scite; Thus much touching the Etymologie. A word touching the division of a Manor; A Manor [Page 61] is twofold, re & nomine: 2. Nomine tantum, re & nomine, as where the two materiall causes of a Manor, the efficient cause, & cau­sa sine qua non, doe meete and joyne toge­ther, nomine tantum, as where any of these causes is wanting, as to insist in the two mate­riall causes, if the Lord will transferre over to some stranger the services of all his Te­nants, and reserve unto himselfe the De­mesnes; or if he will passe away the Deme­snes, and reserve the services: in both causes the Lord peradventure hath a Manor, nomine but not otherwise, because in the one cause he wanteth Demesnes, in the other services. So if a Manor discendeth to Co-parteners and they make partition, and the intire De­mesnes are allotted to the one and th' intire services to the other, the Manor is now in suspence, for neither of them hath any Ma­nor but in name onely: but if part of the Demesnes and part of the Services be allot­ted to each one, then have they each of them a Manor, not nomine tantum, but re & nomine. To insist in the efficient causes, If the King at this day will grant a great quan­titie of land to any Subject, injoyning him certaine duties and services, and withall wil­leth that this should beare the name of a Ma­nor, howsoever this may chance to gaine [Page 64] the name of a Manor, yet it will not be a Manor in th' estimation of the law; to insist in this cause, sine qua non, If the King grant away a Manor to I. S. excepting the Courts and perquisites, the Grantee hath a Manor in name onely: So if all the Freeholders dye but one, if the Lord purchase all the Freeholders land, or passe away the Services of the Freeholders, or release unto his Free­holders all their services, notwithstanding the Demesnes and the Services of the Copi­holders, yet the Lord hath but a Manor in name, because the Freeholders are wanting which are the maintainers and upholders of the Court Baron, and consequently necessa­ry helpe to the perfection of a Manor. So if the Lord granteth away the inheritance of all his Copyholders, or demiseth all his lands granted by Copie to another for 2000. yeares, the Grantee in the one case and the lessee in the other, have a kinde of Seigniority in grosse, and may keepe a Customary Court, where the Steward shall be Judge, and shall take surrenders, and make admittances; and this in the eye of the world is a Manor, though in the judgement of the law it com­eth far short of one. Thus much touching the division of a Manor. I might here handle many collaterall jurisdictions, appropriated [Page 65] to Lords of Manors, as that our erecting Dove-houses, of proving the Wills of their Tenants deceased within their Precincts in many places; of inclosing Common, leaving sufficient besides for the other Commoners, with many of the like; Sed haec lubens libens­que omitio. And thus closing up this part of my Treatise touching Manors. I come to the other part touching Copyhold.

SEC. XXXII.

INeede not stand to discourse at large th'antiquitie of the Copyholders; for if you cast your eye backe to that is past, you shall easily perceive that Copyholders, though very meanely discended, yet they come of an ancient house; and therefore if in this point you desire satisfaction, call to minde what I have already spoken; and (if I mistake not) it will sufficiently answer your desire. Give me leave to goe a steppe further, and to examine the severall names which Copyholders have had from time to time al­lotted unto them, together, with their pro­per Etymologies immediatly upon the Con­quest: they were knowne by the name of Villaines or Tenants in Villanage; so termed by the Normans, either in respect of Imbe­cillity [Page 64] and incertainty of their estates, which were grounded upon a very weake foundati­on, wholly depending upon the will of the Lord, and Oustable at his pleasure; or in re­spect of their Services, which savoured of nothing but slavery, whether they were, cer­ta ac determinata, or incerta ac indeterminata, ubi sciri non poterit vespere, quale servitium fa­cere deberent in Crastino, as Bracton speaketh; contrary to the opinion of some, who hold, that the Service of Copiholders were never subject to such incertainties: or lastly, in respect of the persons, who for the most part were Villaines; howsoever some free men did sometimes hold Land by the same Te­nure: the least of these three reasons is suffi­cient to make them deserve that name, but joyne them together, and then hee that judgeth most favorably of them, will thinke this the truest title that could be bestowed upon them, yet some there are, who in be­halfe of these Tenants, sticke not to maintaine (howsoever in respect of their estates, they may not unfitly be termed Tenants in Villa­nage, being in such strange subjection to their Lords) that neither in respect of their Servi­ces, nor their Persons they could merit that name; especially if we take the word in that reproachfull sense that it is usually taken in [Page 65] at this houre. But if wee account those vil­laine Services which any way touch Hus­bandry, as Plowing, Sowing, Reaping, and such like; and these men villaines, who exer­cise themselves in any point of Husbandry, then they agrue, that their Tenure could in no wise have an apter terme than this; for they confesse, that these Copyholders were for the most part, Rustici & Pagani, and their Services whol [...]y, ad Rusticitatem tendentia: Howsoever, I dare not wholly disallow of this opinion, though I cannot altogether ap­prove of it, for I admit, and in a manner con­sent, that amongst the Normans, these Ser­vices, which wee call Rurall Services, were called villaine Services; and those men whom we terme Husbandmen were termed Villaines; and doe hold that the Copyhold Services in those dayes were more slavish, than Rurall; and they themselves rather Bondmen, than Husbandmen; otherwise we should make their Tenure differ in nothing from ancient Soccage Tenure, which I assure my selfe is otherwise: for though Soccagres were Rustiques, and in that sense Villaines; yet their Tenure was never noted by the name of a Tenure in Villenage, till in many places their Corporall Services begun to be turned into money: then for distinction sake, [Page 66] the one began to be called Liberum Soccagium; the other, Villanium Soccagium. But long before these Coppiholders, were termed Villeynes, and therefore without all doubt their Tenure was in basenesse and slavery, a degree above the ancient Soccage Tenure; till at length the Lords of Manors being fra­med to more civility, began then to thinke it a most uncharitable part to keepe their poore Tenants in that bondage; therefore out of the remorse of their owne consciences, and the compassion of their Tenants miseries, by little and little, they infranchised them, and released them of their heavier burthens, re­serving Services of another nature in liew of them. Thus having shaken off the fetters of their bondage, they were presently freed of their opprobrious name, and had other new gentle stiles, and titles conferred upon them; they were every where then called Tenants by Copy of Court Roll, or Tenan [...]s at will, according to the Custome of the Manor: which styles import unto us three things. 1. Nomen. 2. Originem. 3. Titulum. His name is Tenant by Copy of Court Ro [...]e; for he is not called Tenant by Court-Role, but by Copy of Court-Roll; and this is the sole Tenant in Law, who holdeth by Copy of a­ny Record, Charter, Deede, or any other [Page 67] thing. 2. His commencement is at the will of the Lord. For these Tenants in their birth, as well as the Customary Tenants upon the borders of Scotland, who have the name of Tenant; were meere Tenants at will: and though they keepe the Customes inviolated, yet the Lord might, sans controll, eject them: neither was their estate hereditarie, in the be­ginning; as appeareth by Britton: Britton Ca. 66. for if they died, their estate was presently determined, as in case of a Tenant at will at common Law; and in some points, to this present houre, the Law regardeth them no more, than a meere Tenant at will; for the Freehold at the Common Law, resteth not in them, but in their Lords; unlesse it be in Copyholds of Franke Tenure, which are most usuall in an­cient Demesne; though sometimes out of an­cient Demesne, wee shall meete with the like sort of Copyholds, as in Northamton-Shire, there are Tenants which hold by Copy of Court-Roll, and have no other evi­dence, and yet hold not at the will of the Lord. These kinde of Copyholders have the Franke Tenure in them, and it is not in their Lords, as in case of Copyholds in base Tenure. Besides, Copyholders shall not at­tourne upon the granting away of the Manor, no more than Tenants at will at the Com­mon [Page 68] Law; and their estate can be no infran­chisement to a villaine, no more then a meere estate at will. And further, their Lands are parcell of the Lords Demesnes, as well as Lands granted away at Will, according to the course of the Common Law; and for his Title and Assurance, that is according to the Custome of the Manor: For the Custome of the Manor hath so established, and so fixed them in their Land, that if they doe their Services and Duties, and performe the Cu­stomes of the Manor, they are as well inheri­table, according to the Custome, as he that hath a Franck Tenement at the Common Law: and sithence Custome is the life and soule of Copyhold Estates, and whatsoever shall, or can be spoken touching Copy­holds, ariseth from this Head, and from this Fountaine; Give mee leave in the second place to speake something concerning them.

SEC. XXXIII.

CVstomes are defined to be a Law, or Right not written, which being establish­ed by long use, and the consent of our Ance­stors, hath beene, and is daily practised.

Custome, Prescription, and Vsage; how­soever [Page 69] there be correspondencie amongst them, and dependancie one on the other,Custome, Pre­scription, and Vsage, how they differ. and in common speech, one of them is taken for another, yet they are three distinct things; Custome and Prescription differ in this. 1. Custome cannot have any commencement since the memory of man, but a Prescription may, both by the Comon-Law, and the Civill: and therefore where the Statute. 1. H. 8. saith, that all actions popular, must be brought within three yeares after the offence commi ted; whosoever offendeth against this Statute, and doth escape uncalled for three yeares, he may be justly said to pre­scribe an immunity against any such action. 2. A Custome toucheth many men in gene­rall; Prescription, this, or that man in parti­cular: and that is the reason why Prescripti­on is personall, and is alwayes made in the name of some person certaine, and his An­cestors, or those whose estate he hath; but a Custome having no person certaine in whose name to prescribe, is therefore called and al­ledged after this manner. In such a Borough, in such a Manor, there is this or that Cu­stome. And for Vsage, that is the efficient cause, or rather, the life of both; for Custome and Prescription lose their being if Vsage faile. Should I goe about to make a Cata­logue [Page 70] of severall Customes, I should with Si­siphus saxum volvere, undertake an endlesse piece of worke, therefore I will forbeare, since the relation would be an argument of great curiosity, and a taske of great difficul­ty: I will onely set downe a briefe distincti­on of Customes, and leave the particulars to your owne observation. Customes are ei­ther generall or particular; generall, which are part of the Common law, being currant through the whole Common-wealth, and used in every County, every City, every Towne, and every Manor. Particular, which are confined to shorter bounds and limits, and have not such choyce of fields to walke in, as generall Customes have. These particular Customes are of two sorts, either disallowing what generall Customes doe allow, or allowing what generall Cu­stomes doe disallow, as for example sake. By the generall Customes of Manors it is in the Copiholders power to sell to whom he pleaseth, but by a particular Custome used in some places, the Copyholder before he can inforce his Lord to admit any one to his Copihold, is to make a proffer to the next of the blood, or to the next of his Neighbours ab oriente solis, who giving as much as the par­tie to whom the Surrender was made, should [Page 71] have it: so on the other side by the generall Customes of Manors, the passing away of Copyhold land by deede for more than for one yeare without licence is not warranted; yet some particular customes in some Ma­nors doe it: so by the generall Customes of Manors Presentments, or any other act done in the Leete, after the moneth expired, con­trary to the Statute of magna Charta, and 31. E 3. are voyd, yet by some particular Cu­stomes such acts are good, and so in millions of the like, as in the sequell of this discourse shall be made manifest. And therefore, not to insist any longer in dilucidating this point, let us in few words learne the way how to exa­mine the validitie of a Custome: For our direction in this businesse, wee shall doe well to observe these sixe Rules, which will serve us for exact tryall. 1. Customes and Pre­scriptions ought to be reasonable, and there­fore a Custome that no Tenant of the Ma­nor shall put in his Chattell to use his com­mon in Campis seminatis: after the Corne se­vered, untill the Lord have put in his Chat­tell, is a voyd Custome, because unreaso­nable, for peradventure the Lord will ne­ver put in his Chattell, and then the Tenants shall lose their profits: so if the Lord will prescribe that he hath such a Custome with­in [Page 72] his Manor, that if any mans beasts be ta­ken by him upon his Demesnes damage Fe­sant, that he may detaine them untill the ow­ners of the beasts give him such recompence for his harmes as he himselfe shall request; this is an unreasonable Custome, for no man ought to be his owne Judge. 2. Customes and Prescriptions ought to be according to common right, and therefore if the Lord will prescribe to have of every Copyhol­der belonging to his Manor, for every Court he keepeth, a certaine summe of mo­ney, this is a voyd prescription, because it is not according to common Right, for hee ought for Iustice sake to doe it Gratis; but if the Lord prescribe to have a certaine Fee of his Tenants, for keeping an extraordinary Court, which is purchased onely for the be­nefit of some particular Tenants, to take up their Copyholds and such like; this is a good prescription, and according to common right. 3. They ought to be upon good con­sideration, and therefore if the Lord will prescribe that whosoever passeth through the Kings High way which lyeth through his Manor, should pay him a peny for pas­sing, this prescription is voyd, because it is not upon a good consideration; but if hee will prescribe to have a peny of every one [Page 73] that passeth over such a bridge within his Manor, which bridge the Lord doth use to repaire, this is a good prescription and upon a good consideration. So if the Lord will prescribe to have a fine at the marriage of his Copyholder, in which Manor the cu­stome doth admit the husband to be Tenant by the curtesie, or the feme Tenant in Dower of a Copyhold, this prescription is good and upon a good consideration; but in such Manors where these estates are not al­lowed, the Law is otherwise. 4. They ought to be compulsary, and therefore if the Lord will prescribe that every Copyholder ought to give him so much every moneth to beare his charges in time of warre, this prescription is voyd; but to prescribe they ought to pay so much money for that purpose is a good prescription, for a payment is compulsary, but a gift is Arbitrary at the voluntary liber­ty of the giver. 5. They ought to be cer­taine; and therefore if the Lord will pre­scribe that whensoever any of his Copy­holders dye without heire, that then another of the Copyholders shall hold the same lands for the yeere following, this prescrip­tion is voyd., for the incertainty; but if the Lord will prescribe to have of his Copy­holders, 2. d. an Acre Rent, in time of warre [Page 74] foure pence an Acre, this prescription is cer­taine enough. 6. They ought to be bene­ficiall to them that alledge the prescription; and therefore if the Lord prescribeth that the custome hath alwayes beene within the Manor, that what distresse soever is taken within his Manor for any common persons cause, is to be impounded for a certaine time within his pound; this is no good prescrip­tion, for the Lord is hereby to receive a charge and no commoditie: but if the pre­scription goeth further, that the Lord should have for every beast so impounded a certaine summe of money, this is a good prescription. If we desire to be more fully satisfied in the generall knowledge of prescriptions and Customes, wee shall finde many Maximes which make very materiall for this purpose, amongst which I have made choyse of these three, as most worthy of your observation. 1. Things gained by matter of Record one­ly, cannot be challenged by prescription, and therefore no Lord of a Manor can prescribe to have fellons goods, fugitives goods, D [...]o­dands and such like; because they cannot bee forfeited untill it appeare of Record: but waves, estraies, wreckes and such like may be challenged by prescription, because they are gained by usage without matter of Record. [Page 75] 2. A custome never extendeth to a thing newly created, and therefore if a Rent be granted out of Gavelkind-land, or Land in Borough-English, the rent shall descend, acor­cording to the course of the Common Law, not according to the Custome. If before the Statute 32. H. 8. Lands were deviseable in any Borough, or City by speciall Custome; A Rent granted out of these Lands was not deviseable by the same Custome; for what things soever have their beginning, since the memory of man, Custome maintaines not. If there be a Custome within a Manor, that for every house or cottage two shillings fine shall be paid, if any Tenant within these liberties maketh two houses of one, or buildeth a new house, hee shall not pay a fine for any of these new houses; for the Custome onely ex­tendeth to the old. So if I have Estovers ap­pendant to my house, and I build a new house, I shall not have Estovers for this new built house upon this ground. It hath beene doubted, if a man by Prescription hath course of water to his Fulling-mill, hee converting these into Corne-mills, whether by this conversion the Prescription is not destroyed, in regard that these Come-mills are things newly created; but because the qualitie of the thing, and not the substance is altered; [Page 76] therefore this alteration is held insufficient to overthrow the Prescription; for if a man by Prescription hath Estovers to his house, although they alter the Roomes and Cham­bers in the house, as by making a Parlor where there was a Hall, vele converso, yet the Prescription stands still in force: and so if by Prescription I have an ancient Window to my Hall, and I convert this into a Parlor, yet my neighbours upon this change cannot stoppe my Window; Causa qua supra. 3. Cu­stomes are likewise taken strictly, though not alwayes literally. There is a Custome in London, that Citizens and Freemen may de­vise in Mortmayne. A Citizen that is a For­reiner, cannot devise by this Custome. An Infant by the Custome of Gavelkind, at th'age of fifteene, may make a Feoffment; yet he cannot by the Custome make a Will at that age to passe away his Land; to make a Lease, and a Release, which amounteth to a Feoffment. If there be any Custome that Copyhold-Lands may be leased by the Lord, vel per Supervisor. vel deputatum super­visoris: This Custome giveth not power to the Lord, to authorize any by his last Will and Testament, to keepe a Court in their owne name, and to make Leases, Secundum consuetudinem Manerii: but these Customes [Page 77] have this strict construction, because they tend to the derogation of the Common Law; yet they are not to be confined to literall in­terpretation; for if there be a Custome with­in any Manor, that Copyhold Lands may be granted in Feodo simplici, by the same Cu­stome they are grantable to one, and the heires of his body, for life, for yeares, or any other estate whatsoever; because, Cui licet quod majus, non debet quod minus est non licere; so if there be a Custome that Copyhold Lands, may be granted for life; by the same Custome they may be granted, Durante vi­duitate, but not e converso, because an estate during Widdowhood, is lesse than an estate for life. Before the Statute of 32. H. 8. Lands in certaine Boroughs were devisable by Custome. By the same Custome was im­plicite warranted, authorizing Executors to sell Lands devisable. Now with your pati­ence, I will onely point at the manner of pleading of Customes, I finde a foure-fold kinde of Prescribing.

1. To prescribe in his Predecessors, as in himselfe, and all those whose estate hee hath.

2. To prescribe generally, not tying his Prescription to place, or person, as where a Chiefe Justice prescribeth, that it hath beene [Page 78] used, that every Chiefe Justice may grant Offices; or where a Sergeant prescribeth, Quod talis habetur consuetudo, that Sergeants ought to be impleaded by originall Writ, and not by Bill.

3. To Prescribe in a place certaine.

4. To Prescribe in the place of another.

The first sort of these Prescriptions, a Copyholder cannot use, in regard of the im­becillity of his estate; for no man can Pre­scribe in that manner, but onely Tenants in Fee simple at the Common Law.

The second sort of these may be used sometimes by Copyholders in the pleading of a generall Custome, but in alleadging of a particular Custome, a Copyholder is driven to one of the last, and as occasion serveth, he useth sometimes the one, sometimes the o­ther. If he be to clayme Common, or other profit in the soyle of the Lord, then he can­not prescribe in the name of the Lord, for the Lord cannot prescribe to have Common or other profit in his owne soyle; but then the Copyholder must of necessity prescribe in a place certaine, and alleadge, that within such a Manor, there is such a Custome, that all the Tenants within that Manor, have used to have Common in such a place, parcell of [Page 79] the Manor: but if he be to claime Common, or other profit in the soyle of a stranger, then he ought to prescribe in the name of his Lord, saying, that the Lord of the Manor, and all his Ancestors, and all those whose estate he hath, were wont to have a Common in such a place for himselfe, and his Tenants at will, &c.

SEC. XXXIV.

THus much of Customes. I come now home to Copyholders: and in the third place I hold it the best course to dilate upon the manner and meanes of granting Copy­holds; wherein I will onely rely upon these five parts.

  • 1. Vpon the person of the Grantor.
  • 2. Vpon the person of the Grantee.
  • 3. Vpon the Grant it selfe.
  • 4. Vpon the thing Granted.
  • 5. Vpon the Instruments, through whose hands, as through Conduit-pipes, the Lands are Gradatim, conveyed to the Purchasor.

And first, of the person of the Grantor. Sometimes the Lord himselfe is Grantor; sometimes a Copyholder. In voluntary Grants made by the Lord himselfe, the Law [Page 80] neither respecteth the quality of his Person, nor the quantity of his Estate; for be hee an Infant, and so through the tendernesse of his age, insufficient to dispose of any Land at the Common Law, or non compos mentis, an Idiot, or a Lunatique; and so for want of common reason, unable to traffique in the world; or an Out-law in any personall acti­on, and so excluded from the protection of the Law; or an Excommunicate, &c. and so restrained, ab omnium fidelium communione, or at least, à Sacramentorum partitipatione: notwithstanding these infirmities and disa­bilities, yet he is capable enough to make a voluntary grant by Copy, for if a feme seignio­resse take Baron, and they two joyne in a vo­luntary Grant by Copy, this shall ever binde the Feme and her heires, and yet she is not sui juris, but sub potestate viri, because the Custome of the Manor is the chiefe basis, upon which stands the whole fabricke of the Copyhold estate, and therefore what Cu­stome doth confirme to a Copyholder, the Law will ever allow, and never seeke to a­void it, in respect of any such imperfection in the Grantors persons, and the quantity of the Lords estate is no more respected than the qualitie of his person: for if his interest be lawfull, be his estate never so great, or never [Page 81] so little 'tis not materiall; for be it in Fee, or be it in tayle or dower, or as Tenant by cour­tesie, for life or for yeares, as Guardian, or as Tenant by Statute, or as Tenant by Elegit, or at will; the least of these estates, is a sufficient warrant to the Lord, to Grant any Copyhold esheated unto him: for as long time as the Custome doth allow; the ancient Rents and Services, being truely reserved, and these Grants shall ever binde them that have the Inheritance, or Franck-Tenement of the Manor, as well as offices granted for life, by the chiefe Justice of the Common Pleas, whose office is but at will, shall ever conclude the succeeding Justice. The reason of the Law is this. A Copyholder upon voluntary Grants made by Copy, doth not derive his estate out of the Lords estate onely, for then the Copy­holders estate should cease, when the Lords interest determineth, Nam cessante: primitivo cessat derivativus, but the life of the Copy­holders estate is the Custome of the Manor; and therefore whatsoever befalleth the Lords interest in his Manor, be it determined by the course of time, by death, by forfei­ture, or other meanes; yet if the Lord were Legitimus Dominus pro tempore; how small so ever his estate was, that is enough, for the same Custome that fixeth a Copyholder in­stantly [Page 82] in his land upon his admittance, will likewise preserve, and protect his interest, to the end, in such manner, that though the Lords interest faileth, yet his shall never fall to ground, being upheld by such a proppe, such a pillar, unlesse perchance the Copy­holder offer violence to his Founder in brea­king the Custome. If the Lord granteth a Copyhold, and after doth sever this Copy­holder from the Manor, by granting the in­heritance to a stranger, though now one of the chiefe pillars of a Copyhold estate is wanting, viz. to be parcell of the Manor; yet because the Land, at the time of the Copy­holders admittance, had this necessary inci­dent, this severance, being a matter ex post fa­cto, cannot amount to the destruction of the Copyhold, espicially being the sole act of the Lord himselfe. If a Manor be granted upon Condition, and before the Condition is broken, the Land is granted by Copy, then the Manor become forfeited, and the Feoffer entreth; yet the Copyhold estate remaineth untouched, because lawfully esta­blished by Custome, and yet all meane estates and charges whatsover, granted by the Feoffee at the Common Law were void­able upon the entry of the Feoffer; for wee have a ground in Law, that when an entry is [Page 83] made for breach of a Condition, the party to all intents and purposes, is in the same plight that he was in at the time of the making of the estate. If a man seized of a Manor in Fee, dieth seized, having issue, a daughter; and his wife being privement inse [...]nt with a sonne, and the daughter granteth Lands by Copy, this Grant shall stand good against the sonne, for the daughter was Legitim [...] Domina pro tempore. So if the Feoffee of a Manor, upon Condition to infeoffe a stranger, the next day maketh a voluntary Grant by Copy, this shall binde, and yet his interest was to have but small continuance. If a Manor be Gran­ted with a feme in Francke marriage, and there is a divorce had, causa paercontractus; so that now the interest of the Manor is now granted to the feme onely, and by relation, the marriage is void, ab initio: yet because the Baron was Legitimus Dominus pro tempore, any Copyholders estates granted, before the divorce, remaine good. So if a man espouseth a feme seignioresse, under the age of consent; and after she doth disagree, though the mar­riage by relation was voide, ab initio, yet Copyholds granted before disagreement, shall never be avoided, causa qua supra.

If the Lord of a Manor committeth felo­nie [Page 84] or murder, and proces of Outlawry, be awarded against him, after the Exigent, hee granteth Copyhold estates, according to the Custome, and then is attainted, these Grants are authenticall, though by relation, the Manor was forfeited, from the time of the Exigent awarded. So if the Lord had beene attainted by Verdict, or Confession, any Grant by Copy, after the Felony, or murder com­mitted, shall stand good, notwithstanding the relation. If the Lord of a Manor ac­knowledge a Statute, and then granteth Lands by Copy; and after the Manor is de­livered to the Cognisee in extent; the Grant cannot by this be impeached. And if the Lord of a Manor taketh a wife, and after maketh Copyhold estates, according to the Custome, and dieth, though the feme hath this Manor assigned unto her for her Dower, yet cannot shee avoide these Copyhold estates, because the Copyholders are in by a title Paramount, the title of the feme, viz. by Custome. But paradventure, if the heire af­ter the death of his Ancestor, before the Assignment made unto the feme for her Dower, had granted Lands by Copy, the feme might avoide these Grants, because in­stantly upon the death of the Baron, her title received his perfection, and nothing more [Page 85] was wanting to the confirmation of her in­terest: but though the quantity of the Lords estate in the Manor be not respected, yet the quantity of his estate in the Copyhold is regarded. For if a Copyholder in Fee sur­render to the use of the Lord for life, the Remainder over to a stranger, or reserveth the Reversion to himselfe, if the Lord will Grant this by Copy in Fee, whatsoever estate the Lord hath in his Manor; yet having but an estate for life in the Copyhold; no larger estate shall passe, then hee himselfe hath, Quia nemo potest plus juris in alium transferre quam ipse habet: and further ob­serve, that sometimes the Law respecteth the quantity of the Lords estate in the Manor; for what Acts so ever are not confirmed by Custome, but onely strengthned by the power, authority, and interest of the Lord, have no longer continuance than the Lords estate continueth, and therefore it is held, that if a Tenant for life of a Manor, granteth a licence to a Copyholder to alien, and di­eth, the Licence is destroyed, and the power of alienation ceaseth. As for the quality of the Lords estate in the Manor, that is much more now respected, than either the qualitie of his estate, or the qualitie of his person: for if the Lord, or he who soever it be that maketh a voluntary Grant [Page 86] by Copy, hath no lawfull interest in the Manor, but onely an usurped title, his Grant shall never so bind the right owner; but that upon his entry hee may avoide them, other­wise wee should make Custome an agent in a wrong, which the Law will never suffer; and yet if the Lord of a Manor by his Will in writing deviseth, that his Executor shall Grant Copy hold estates, Secundum consuetu­dinem Manerii, for the payment of his debts, &c. and they make voluntary Grants accordingly: these Grants are good, not­withstanding the Executor hath no interest in the Manor, nor is Dominus pro tempore.

If a Disseinor of a Manor dieth seized, notwithstanding his heire come in by ordina­ry course of descent, yet because the Tort commenced by his Ancestor, is still inherent to his estate, if any Copihold estate be gran­ted by the heire, it may be avoided by the Disseinor, immediatly upon his recovery, or upon his entry; and so if the Disseinor in­feoffe a stranger of the Manor; notwithstan­ding the Feoffee come in by title, yet no grant made by him of Copyhold-Land, shall ever binde the Disseined, no more than a Grant made by the Disseinor himselfe.

If Tenant in Tayle of a Manor disconti­nueth [Page 87] and dieth; and after the discontinu­ance Granteth Copyhold, estates, the heire recovering in a Formidon in the Discender, may avoid these Grants; for though the Dis­continue come in under a just title, yet his interest being determined by the death of the Tenant in Tayle, the continuance of the pos­session is a Tort to the heire, and Acts done by Tort-scisors tending to the dis-inheritance of the right owners Custome, will never so strengthen, but they may be adnihilated. So if a man seized of a Manor in right of his wife, Alieneth this Manor and dieth, any Grant made of Copyhold estates, after his death may be avoided by the feme, upon her entry, or upon her recovery, in a Gui in vita.

If a Manor be Granted, pr. aut. vie, and Cestay que vie dyeth, and the Grantee continueth still in the Manor, and maketh Grants by Copy, these shall not binde the Grantor of the Manor; for immediately upon the death of Cestay que vie, the Grantee was but a Tenant at sufferance, and had no Manor of Lawfull interest, for a Writ of Entry, ad terminum qui preter sit, lieth against him, as a­gainst Deforceor.

And so if a Tenant for life of a Manor [Page 88] maketh a Lease for yeares of the same Manor and dieth, Copyhold estates granted by the Lessee, after the death of the Tenant for life, are voideable by the first Lessor.

If a Lessee for yeares of a Manor granteth a Copyhold in Reversion, and before the Reversion eschue, the terme is expired, the Grant is void; and so I take the Law to be, if the Lessee surrendreth his terme, and then before his Lease should have ended in point of limitation, the Reversion falleth, yet the Grantee shall not have it.

If a Lease be made for yeares of a Manor, the Lease to be voide upon the breach of a certaine Condition, if the Condition be bro­ken, and afterwards the Lessee before the en­try of the Lessor, granteth estates by Copy, these Grants shall never exclude the Lessor: for presently upon the breach of the Con­dition; the Lease is voyde, but had the Manor beene granted for life, in Tayle or in Fee, I thinke Law would have fallen out o­therwise, for before entry, the Franck-Tenement had not beene avoided, and wheresoever a man may enter and avoide any estate of Franck-Tenement, upon the breach of a Condition, the Law adjudgeth nothing [Page 89] to be in him before entry, and he may waive the advantage which hee might take by the breach of the Condition if he will, and there­fore notwithstanding the accruer of the title of the Grantor; yet before this title be ex­ecuted by entry, the Grantee hath such a lawfull interest, that what estate soever hee granteth by Copy, in the interim shall stand good against the Grantor. And so if an In­fant infeoffe me of a Manor, though hee may enter upon me at his pleasure; yet Grants made by me by Copy before his en­try, shall never be defeated by any subsequent entry.

And the same Law is of Grants made by a Villayne purchaser of a Manor, before the entry of the Lord, or of Grants made after an alienation in Mortmayne, before the Lord Paramount hath entred for a forfeiture.

If a Parson after Institution, and before In­duction, a Manor being parcell of his Gleab Lands, Grants Lands by Copy, and after is inducted: this admitting of the Copyholders is no binding act, for though, as to the spiri­tualties, he be a compleate Parson, presently upon the institution, yet as to the temporali­ties, he is not compleat before Induction. So if a Parson be admitted instituted and indu­cted, [Page 90] but doth not subscribe to the Articles, according to the Statute of 13. Eliz. and granteth Lands by Copy, as before. This Grant shall not conclude the succeeding In­cumbent because his Admission, Institution, and Induction were wholly voide in them­selves, but had the Parson beene deprived for crime or heresie, or for being meere Lai­cus, although he be declared by sentence, to be uncapable of a Benefice; and so his pre­sentment, voide (ab initio) yet because the Church was once full, untill the sentence declaratory came; for though the deprivati­on shall relate to some purposes, yet because the Presentment, is not in it selfe voide, sure­ly a relation shall never be so much favoured, as to avoid a Copyhold estate in this kinde.

So much of Grants made by the Lords themselves. In Grants made by Copyhol­ders, as the Law respecteth the quality of the Copyholders estate, so doth it respect both the quality of his person, and quantity of his estate.

The quality of person, for whosoever is uncapable of disposing of Land at the Com­mon Law, cannot without speciall Custome passe away any Copyhold. The quantity of his estate, for no Copyholder can possibly [Page 91] passe away more than is in him; and there­fore, if there be joynt Tenants of a Copy­hold, one cannot aliene the whole. But if there be two joynt Tenants of a Manor, and a Copyholder escheateth, one of them may grant this Copyhold, and his Companion shall never avoide any part of it.

If a Copyholder for life, the remainder over in Fee to a stranger surrendreth in Fee, and the Lord admits accordingly, yet an e­state for life onely passeth.

So if the Lord of a Manor granteth a Co­pyhold for life, where an estate in Fee, is warrantable, and the same Grantee surrenders in Fee, to the use of a stranger; and the Lord admits him, secundum officium sursumreddi­tionis; I thinke no Fee passeth: for though the Lords admittance may, prima facie, seeme to amount to a confirmation of the estate sur­rendred; the Reversion resting in him to dispose of, according to the Custome; as where a Lessee for yeares at the Common Law maketh a Feoffment in Fee, and maketh a Letter of Attorney to his Lessor, to deliver Livery and seisin, who executeth it accor­dingly, though the Lessor be used as an in­strument to performe the will of the Lessee; yet this being his voluntary act, the Law [Page 92] taketh it as a consent for the passing away of the whole inheritance; but if you looke nar­rowly into both Cases you shall finde the difference in the Latter Case, by the Feoff­ment, the Fee is devested out of the Lessor; and therefore a consent will serve to trans­ferre the Reversion; but in the former Case, the Reversion is not pluckt out of the Lord, by the Surrender, and therefore an implied consent is too weake to remove it. I will onely adde one observation more, and so I will end with the Grantor.

The Law is not so strict to a Copyholder, as that he must come personally into Court upon the making of every Surrender, but they may Surrender by Attorney, as well as Livery and Seisin may be made by Attorney at the Common Law; and should the Law be otherwise, great inconveniencie would ensue; for how should Copyholders that are in prison, or languishing upon bed, or be­yond the Seas, surrender but by Attorney?

But note this difference, if a man hath a bare Authority joyned with a Confidence without interest, this Authority cannot be executed by Attorney; & therfore if I devise, that my Executor shall sell my Land, they [Page 93] cannot sell by Attorney, for that were to make an Attorney upon Attorney, which the Law will in no wise permit; and though a man have an Authority joyned with an in­terest, yet if the Authority be warranted by speciall Custome onely, it cannot be executed by an Attorney: and therefore if there be a speciall Custome, that a Copyholder for life may make estate, for 20. yeares to continue after his death, these estates cannot be made by Attorney. So if there be a speciall Custome, that an Infant at the age of discretion may surrender a Copyhold; this surrender being confirmed by speciall Custome onely, cannot be made by Attorney. And so if there be a Custome, that a Copyholder out of the Court may surrender into the hands of the Lord, by the hands of two Customary Te­nants, such Surrenders must be done in per­son.

But wheresoever there is a generall Autho­ritie, accompanied with an interest, that Au­thority may be executed by Attorney, as Cestuy que use, after the Statute of 1. R. 3. and before the Statute 27. H. 8. might have aliened by Attorney; for at that time he had an absolute authority to dispose of the Land at his pleasure, without any confidence re­posed in him. And thus much of the Gran­tor; [Page 94] A word of the Grantee.

SEC. XXXV.

THe same persons that are capable of a Grant by the Common Law, are capa­ble of a Grant by Copy, according to the Custome of the Manor.

An Infant, a man of non sanae memoriae; an Idiot, a Lunatique, an Out-law, or an excom­municate, may be Grantees of a Copyhold estate.

The Lord himselfe may take a Copy­hold to his owne use, one joynt Tenant may receive a Copyhold from the hands of his joynt companion, because it passeth by Sur­render, not by Livery.

A feme covert may be a purchaser of Co­pyhold, and this purchase shall stand in force, untill her husband disagreeth. Nay, further, a feme covert may receive a Copyhold estate by surrender from her husband, because she commeth not in immediately by him, but by mediate meanes, viz. by the admittance of the Lord according to the surrender.

As the seme is capable of receiving a Co­pyhold from the hands of the Baron; so by speciall Custome, the Baron may take a Co­pyhold from the hands of his seme, for in some Manors, Custome [...] doth enable the feme to devise a Copyhold to the Baron, but this Custome hath beene much impugned, therefore I dare not justifie the validity of it.

What persons soever are capable of a Grant by Copy, may well take by Attorney, not that the Lord shall be enforced to ad­mit any one by Attorney, because upon eve­ry admittance, there is fealty due by the par­ty admitted, which is a duty so inseparably annexed to the persons, that it cannot be discharged by deputy, and therefore no rea­son the Lord should be inforced to admit by Attorney, but if hee will admit him, it stan­deth good.

It is not necessary that upon Surrenders of Copiholds, the name of the partie to whose use the Surrender is made, be precisely set downe; but if by any manner of circumstance, the Grantee may be certainely knowne, it is sufficient. And therefore a Surrender made to the Lord Archbishop of Canterbury, or the Lord Major of London, or the high Sheriffe [Page 96] of Norfolke, without mentioning, either their Christian-name, or Sir-name, are good e­nough, and certaine enough, because they are certainely knowne by this name, without further addition. So if I Surrender to the use of the next of my blood, to the use of my wife, to the use of my brother or sister, ha­ving but one brother, or one sister, these Sur­renders are good without any additions, be­cause the Grantee may certainly be knowne by these words.

If I Surrender generally into the hands of the Lord, not expressing to whose use the Surrender shall be, this Surrender is a good Surrender, and shall enure to the benefit of the Lord.

If I surrender to the use of my sonne W. ha­ving more sonnes than one of that name, yet by an averment, this incertainty may be helped.

But if I Surrender to the use of my cosin, or my friend, this is so generall and so incer­taine, that no subsequent manifestation of my intention can any way strengthen it.

So if three Surrender, to the use of three or foure of S. Dunstons Parish, not naming the Parishiones by their names, this Surrender is utterly void.

And so if I Surrender in the disjunction to the use of I. L. or I. N. this is insufficient for the incertainty.

And in customary Grants upon Surrenders the Law is not so strict, as in Grants at the common Law, for in Grants at the common Law, if the Grantee be not in rerum natura and able to take by vertue of the Grant, pre­sently upon the Grant made, it is meerely voyd. But in customarie Grants upon Surrenders the Law is otherwise: for though at the time of the Surrender, the Grantee is not in esse, or not capable of a Surrender, yet if he be in esse and capable at the time of the Admittance that is sufficient; and therefore if I Surrender to the use of him that shall be heyre to I. S. or to the use of I. S. next child, or to the use of I. S. next wife; though at the time of the Surrender I. S. had no heyre, child, or wife: yet if afterwards he hath a childe, or taketh a wife, his heyre, his childe, or his wife may come into the Court and compell the Lord to admit according to the Surrender. So if I Surrender to the use of him that shall come next into Pauls after such an houre, whose fortune soever it is to come first, the Lord must admit, and I shall never avoyd it.

The same Law is if I surrender to the use of him that I. S. shall nominate, or that I my selfe shall nominate to the Lord at the next meeting; the reason of the Law is this, a Sur­render is a thing executory which is executed by the subsequent Admittance, and nothing at all is invested in the Grantee, before the Lord hath admitted him according to the Surrender, and therefore if at the time of the Admittance the Grantee be in rerum natura and able to take, that will serve.

Besides in Customarie Grants the intent of the Grantor is more respected than it should be by the strict rules of the Law, which appeareth by this, that if a Surrender be made of a Copiehold to the use of a last Will, and the Surrender deviseth it unto two, the one is admitted according to the purport of the Will, this shall inure to both, but though the Surrender bee a thing executory and the intent of the Grantor so much favo­red: yet if a Copyholder will Surrender to the use of the right heires of I. S. he being alive, this is voyde because it cannot take effect according to the intent of the Grantor; for he would have the grant to bee executed presently, which cannot bee in regard that I. S. can have no heyre till after his death: [Page 99] So much of the Grantee, and I come now to the Grant it selfe.

SEC. XXXV.

A Copyhold interest connot be transfer­red by any other, assurance then by Co­py of Court Roll, according to the Cu­stome.

If I will exchange a Copyhold with ano­ther, I cannot doe it by an ordinary exchange at the Common Law, but we must surrender to each others use, and the Lord admit us ac­cordingly.

If I will devise a Copyhold I cannot doe it by will at the Common Law, but I must surrender to the use of my last Will and Te­stament, and in my Will I must declare my intent.

If I am ousted by a Copyholder, a re­lease made to him is voyde, because it would be a prejudice to the Lord, and besides there is no Customary right, upon which the re­lease may inure, but a release inuring by the way of extinguishing where no prejudice ac­crueth to the Lord, will serve to drowne a Copyhold right, and therefore if I surren­der out of Court upon condition,Co. 4 fo. 25. to the use of I. S. and the presentment is made abso­lute [Page 100] in Court, and the admittance framed ac­cordingly, this admittance and presentment differing from the effect of the Surrender are both voyde. Yet because upon the ad­mittance the Lord is satisfied of his fine and so nothing at all prejudiced, and besides here is a customary right, upon which the release may be grounded, I may by a release at the Common Law, sufficiently confirme this voyde esta [...]e. And so upon the same reason if I am ousted of a Copyhold, and the Lord admit him according to the Custome, a re­lease made by me at the Common Law, will extinguish my right, but if I make a Lease for yeares of a Copyhold, I cannot by my re­lease passe my Reversion, because this re­lease injureth by way of inlargement to trans­ferre an interest, and not by way of extin­guishment, to drowne a right, but my way is to surrender my Reversion into the hands of the Lord, and he to Grant it over to the Lessee.

SEC. XXXVII.

IF Copyhold Land come into that plight that it cannot passe by Copie, it is become not alienable; and therefore if the Lord of a Manor will grant to me a Copihold in [Page 101] Fee, and after will grant the inheritance of this Copihold to a stranger in regard that now my Copihold is become no parcell of the Manor, and so I cannot surrender into the hands of the Lord and the Grantee of the inheritance, though I am to him a Tenant, and am tyed to doe unto him all manner of services which are due without keeping of Court, as to pay Rent, to discharge Herriots and all other Duties, of the same nature: yet because the Grantee cannot keepe a Court, and so is incapable of taking a Surren­der, or making an admittance, therefore I cannot by any meanes alien for no convei­ance at the Common Law will serve, be­cause it remaineth still Copihold notwith­standing, and what Customes soever were in­cident to the Land before severance, doe re­maine still undestroyed, as if the land were Burrow English, or Gavelkind before, it so continueth,Co. 4. fo. 24. and a decree in Chancery will not serve no more than an ordinary assurance at the Common Law; for that bindeth my per­son onely, not my interest: sithence therefore Copihold estates cannot be conveyed a­way otherwise than by Copie of Court Roll, according to the custome, let us exa­mine the nature of these customarie grants, wherein three branches are to bee consi­dered.

  • [Page 102]1. The Surrender.
  • 2. Presentment.
  • 3. Admittance.

In some Grants a Surrender is sufficient without Presentment or Admittance.

In some an Admittance without a Surren­der or Presentment.

In some a Surrender and Admittance and both necessary; and in some, a Surrender, Presentment, and Admittance are all re­quisite.

SEC. XXXVIII.

IF a Copiholder will Surrender to the use of the Lord the interest of the Copihold is sufficiently vested in the Lord immediate­ly upon the Surrender without any Admit­tance of the Lord, because the Lord cannot admit himselfe.

If the Lord will make a voluntary grant of a Copiehold, no Surrender is requisite, for by the Admittance of the Lord accor­ding to the custome, the Copieholder is [Page 103] sufficiently setled in his Land without any o­ther ceremonie.

If a Copyholder will Surrender in Court to the use of a stranger, besides the Surrender the Admittance is requisite, and if the Sur­render he made out of Court into the hands of the Lord himselfe, which the generall custome will warrant, or into the hands of the Bailiffe or of two Tenants of the Manor, which by speciall custome onely is warranta­ble, besides a Surrender, two other ceremo­nies are requisite, the one a true presentment of the Surrender in Court by the same per­sons into whose hands the Surrender was made, the other is an Admittance of the Lord according to the effect and tenor both of the Surrender and presentment.

But now more particularly of every one of them apart, and first of a Surrender.

SEC. XXXIX.

THis word Surrender, is vocabulum artis, and therefore where a Surrender is needfull, if this one word be wanting, all other words, used in ordinary conveiances, are uneffectuall and insufficient to convey [Page 104] any Copyhold estate, for if a Copyhol­der come into Court, and offer to passe his Copyhold by word of grant, of gift, of bargaine, or sale, or such like, I doubt hee will faile of his purpose, for as he is tyed to a singular forme of assurance, so is he restrai­ned to peculiar words in his assurance.

Surrenders are made in severall sorts accor­ding to the severall customes of Manors.

In some Manors where a Copyholder surrendreth his Copyhold, he useth to hold a little rod in his hand, which he delivereth to the Steward or Bayliffe, according to the Cu­stome of the Manor, to deliver it over to the party to whose use the Surrender was made in the name of Seisin, and from thence they are called Tenants by the Verge.

In some Manors in stead of a wand a straw is used, and in other Manors a glove is used, Et consuetudo loci semper est observanda.

A Surrender (where by a subsequent Ad­mittance the grant is to receive his perfection and confirmation) is rather a manifesting of the Grantors intention than of passing away any interest in the possession, for till Admit­tance, [Page 105] the Lord taketh notice of the Gran­tor as Tenant, and he shall receive the profits of the Land to his owne use, and shall dis­charge all Services due to the Lord, but yet the interest is in him, but secundum quid, and not absolutely; for he cannot passe away the Land to any other, or make it subject to any other incumbrance than it was subject to, at the time of the surrender, neither in the Grantee is any manner of interest invested before admittance; for if hee enter he is a trespasser, and punishable in trespasse; and if he surrender to the use of another, this sur­render is meerely void, and by no matter, ex post facto can be confirmed; for though the first surrender be executed before the second; so that at the time of the admittance of him, to whose use the second surrender was made, his surrenderer hath a sufficient interest as ab­solute owner; yet because at the time of the surrender, he had but a possibility of an inter­rest; therefore the subsequent admittance, cannot make this act good which was void, ab initio: but though the Grantee hath but a possibility upon the surrender, yet this is such a possibility as is accompanied with a cer­tainty, for the Grantee cannot possibly be de­luded, or defrauded of the effect of his sur­render, and the fruits of his Grantee: for if [Page 106] the Lord refuse to admit him, he is compela­ble to do it by a Sub paena in the Chancery, and the Grantors hands are ever bound from the disposing of the Land, any other way, and his mouth ever stopped from revoaking, or coun­termanding his surrender. But peradventure, if a Copyholder languishing in extremity surrendreth out of Court, to the use of his Cosin, in consideration of consanguinitie, or to the use of his sonne, in consideration of naturall love and affection, and after, recove­reth his health before presentment, this sur­render is revocable, or countermandable: but if it be granted upon valuable considera­tion; as for the discharge of debts, or for a summe of money paid, though it be made out of Court, yet it is as binding as any surrender whatsoever made in Court. And thus much for a Surrender; a word of a Present­ment.

SEC. XL.

THe Presentment by the generall Cu­stomes of Manors, is to be made, at the next Court day, immediately after the sur­render, but by speciall Custome; in some places, it will serve at the second or third Court. And it is to be made by the same [Page 107] persons, that tooke the surrender, and in all points materiall, according to the true tenure, of the surrender. And therefore if the sur­render be conditionall, and the Presentment be absolute, both the Surrender, Presentment and Admittance thereupon are wholly void.

But if the Conditionall surrender be pre­sented, and the Steward in entring of it, o­mitteth the Condition; yet upon sufficient proofe made in Court, the surrender shall not be avoided, but the Roll amended, and this shall be no conclusion to the partie, to plead or give in evidence the truth of the matter.

If I surrender out of Court, and die before Presentment; if Presentment be made after my death, according to the Custome,Co. 4. fo. 39. b. this is sufficient; so if hee, to whose use the surren­der is made dieth before Presentment, yet upon Presentment made after his death, ac­cording to the Custome, his heire shall be admitted: and so, if I surrender out of Court, to the use of one for life, the Rendrour, and the Lessee for life dieth before Present­ment, yet upon Presentment made, he in the remainder shall be admitted. And so, if I surrender to two joyntly, and one dieth be­fore Presentment, the other shall be admitted [Page 108] to the whole. The same Law is, if those in­to whose hands the surrender is made, dye before Presentment, upon sufficient proofe in Court, that such a surrender was made, the Lord shall be compelled to admit according­ly; and if the Steward, the Bailiffe, or the Tenants, into whose hands the surrender is made, refuse to present, upon a Petition or a Bill exhibited in the Lords Court; the party grieved shall finde remedy. But if the Lord will not doe him right, he may both sue the Lord, and them that took the surrender in the Chancery, and shall there finde reliefe. Thus much of Presentments. A word of Admit­tance.

SEC. XLI.

ADmittances are threefold;
  • 1. An Admittance upon a voluntary Grant.
  • 2. An Admittance upon Surrender.
  • 3. An Admittance upon a Discent.

Involuntary Admittances the Lord is an instrument; for though it is in his power to keepe the Land in his owne hands; or to dispose of it at his pleasure, and to that in­tent may be reputed as absolute owner, yet because in disposing of it, he is bound to ob­serve [Page 109] the Custome precisely in every point, and can neither in Estate nor Tenure bring in any alteration, in this respect the Law ac­counts him Customes instrument. If the Cu­stome doth warrant an estate onely, Durante viduitate, and the Lord admits for Life; this shall not bind his heire or successor, because Custome hath not sufficiently confirm'd it. So if the Lord faile in reserving verum & anti­quum redditum; as if he reserveth ten shil­lings, where the usuall rent Customably re­served, is twenty shillings: this may be a meanes to avoide the admittance, and the Law is very strict in this point of reservation: for though the ancient accustomable rent be reserved according to the quantity; yet if the quality of the rent be altered, the heire may avoid this Grant: for if the ancient rent from time to time hath been twenty shillings in Gold, and the Lord reserveth it in Silver, this variance of the qualitie of the rent is in force to destroy the Grant: so if the ancient rent hath beene accustomably paid at foure Feasts in the yeare, and the Lord reserveth it at two Feasts. So, if two Copyholds Escheate to the Lord, the one of which hath beene usually demised for twentie shillings rent, th'other for ten shillings rent, and he gran­teth them both by one Copy, for one rent [Page 110] of thirty shillings, this is not good; and so if a Copyhold of three acres Escheates, which hath beene ever granted for three shillings rent, and the Lord granteth one Acre, and reserveth pro rata, one shilling rent, verus & antiquus reddit, is not reserved: but if a Co­pyhold of sixe Acres, which hath ever beene demised for sixe shillings rent, Escheateth to two Coparteners, and one granteth three Acres, reserving thre shillings pro rata, this is a perfect reserving. In Admittances upon sur­render, the Lord to no intent is reputed as owner, but wholly as an instrument, and the party admitted, shall be subject to no other charges or incombrances of the Lord, for he claimes his estate under the party that made the surrender: and in the plaint, in the nature of a Writ of entry in the per, it shall be sup­posed in the per by him, not by the Lord; and as in admittances upon surrenders; so in ad­mittances upon descents, the Lord is used as a meere instrument,Co. 4. fo. 27. b. and no manner of interest passeth out of him, and therefore, neither in the one nor in the other, is any respect had unto the quality of his estate in the Manor; for whether hee hath it by right, or by wrong it is not materiall, these admittances shall never be called in question for the Lords Title,Co. 1 fo. 140. b. because they are judiciall acts, which [Page 111] every Lord is enjoyned to execute.

Besides in admittances upon Surrenders, the Lord being accounted nothing but a necessary instrument, it followeth that he hath a bare Customary power to admit, secundum for­mam & effectum sursum reddendi: therefore if there be any variance betweene the admit­tance and the surr. either in the person, in the estate, or in the tenure, or in any other colla­terall points, the Lord doth onely transferre an estate according to the surr. and his autho­rity if it can take such effect. As if I Surren­der to the use of I.S. and the Lord admits I.N. this admittance is wholly voide; and notwithstanding this admittance the Lord may afterwards admit I. S. according to the effect of his authoritie: but had he admitted I. S. and I.N. joyntly, then the admittance had beene void for the one, and good for the other, like the Case of a Devise: where a Devise of a terme is made to I. S. and the Executors agree, that I. S. and I.N. shall have this terme;Co. 4 fo. 28 this consent is voide to I.N. for after the consent of the Executors, I. N. is in by the Devise. Yet some are of opinion, that if I surr. to the use of I. S. in Fee, and the Lord admits I. S. together with his eldest sonne and heire apparent, that this is an estate [Page 112] by Estoppell to I.S. and that he shall onely claime joyntly with his sonne, because hee might have refused an admittance in this man­ner; but I can hardly be brought, to thinke that this admittance, giving a present interest in theson, who by surrender was to have no interest till the death of his father, should be any such estopell.

If I surr. to the use of I.S. for life, and the Lord admits him in Fee, an estate for life onely passeth.Co. 4. fo. 29. So if I surr. without mentio­ning any certaine estate, because by implica­tion of the Law, estate for life onely passeth, though the Lord admit in Fee, no more doth passe, than the implication of Law will war­rant. If I surr. with the reservation of a rent, and the Lord admits not, reserving any rent, or reserving a lesse rent than I reserved upon the Surrender, this admittance is wholly void: but if the Lord reserveth a greater rent, then is the reservation void, only for the surplusage, and the admittance, so far currant as it agreeth with my surrender. If I surren­der upon Condition, and the Lord omits the Condition, the admittance is wholly void; but if my surrender be absolute,Co. 4. fo. 25. and the Lords admittance be conditionall, the Con­dition is void, but the admittance in all points else is good.

The reasons of these diversities are these, where an Authority is given to any one to execute any act, and he executeth it contrary to the effect of his authority, this is utterly voyd, but if hee executeth his authority and withall goeth beyond the limits of his war­rant, this is voyd for that part onely, wherein he exceedeth his authority. These admittan­ces upon Surrender, differ from admittances upon Discents in this, that in admittances upon surrender, nothing is vested in the Gran­tee before admittance, no more then in the Voluntary admittances; but in admittances upon Discents, the heire is Tenant by Copy immediately upon the death of his Ancestor, not to all intents and purposes; for peradven­ture he cannot be sworne of the homage be­fore, neither can hee maintaine a plaint in the nature of an Assize in the Lords Court before, because till then he is not compleate Tenant to the Lord, no further forth then the Lord pleaseth to allow him for his Tenant. And therefore, if there bee Grandfather, Father, and Sonne; and the Grandfather is admitted, and dyeth, and the Father entreth, and dyeth before admittance, the Sonne shall have a plaint in the nature of a writ of Ayell, and not an Assize of Mort d'auncestor, so that to all in­tents and purposes, the Heire, till admittance [Page 114] is not compleat Tenant, yet to most intents, especially as to strangers, the Law taketh no­tice of him,Co. 4. fo. 23. as of a perfect Tenant of the Land, instantly upon the death of his Aunce­stor, for he may enter into the Land; before admittance, take the profits, punish any tres­passe done upon the ground, Surrender into the hands of the Lord, to whose use he plea­seth, satisfying the Lord his fine, due upon the Discent, and by estoppell, hee may pre­judice himselfe of his inheritance, for if an Estrange come and surrender to the use of him and his Wife, before admittance, hee shall ever claime joyntly with his Wife, and never be taken as sole Tenant, and the Lord may avow upon him before admittance, for any arrearages of Rent, or other Services, and last of all,Co. 4. fo. 22. b. upon an actuall possession, there shall be possessio fratris, before admittance, for if a Copyholder in Fee, have issue a Sonne, and a Daughter by one Venter, and a Sonne by another venter, and dyeth seised, and his Sonne by the first Venter, entereth into the Land, and dyeth before admittance, the Daughter shall inherit, as Heire to her bro­ther; and not the Sonne by the second Ven­ter, as Heire to his Father: and many times the possession of a Guardian, or a Tearmer, without an actuall entry, or any claime made [Page 115] by the Heire, will make a possessio fratris. As if a Copyholder in Fee, having issue a Sonne or a Daughter, by one venter, and a Sonne by another Venter; by Licence of the Lord, maketh a Lease for yeares, and dyeth, and the Sonne of the first Venter dyeth, before the expiration of the Terme, being neither ad­mitted, nor having made any actuall entry, or any claime. Yet this possession of the Lessee is sufficient, and the Reversion shall discend to the daughter of the first Venter, and not to the sonne of the second Venter. But if the Lease had beene determined living, the Son by the first Venter, and afterwards he had dy­ed before any actuall entry made, the Law would have fallen out otherwise, because there was a time, when he might have lawfully en­tred; therefore, where some have imagined that nothing should be invested in the Heire before admittance; because every admittance of an Heire, upon a Discent, amounteth to a Grant, and so may be pleaded, they are in an errour, for though it be true, that after ad­mittance, the Heire may in pleading, alledge this as a Grant, and that hath beene allowed, to avoid the inconveniencies that otherwise should ensue; For if the Copyholder should be driven in pleading, to shew the first Grant,Co. 4. fo. 22. b. either that being made before the memory of [Page 116] man, is not pleadable, or since the memory of man, and then Custome failes, for this reason the Law hath allowed a Copyholder, in pleading to alledge any admittance aswell upon a Discent, as upon a Surrender, as a Grant: and yet he may if he will, alledge the admit­tance of his Ancestors as a Grant, and shew the Discent to him, and that he entred; and well without any admittance; but the Heire cannot plead that his Ancestor was seised in Fee, at the will of the Lord, by Copy of Court Roll, of such a Manor, according to the Custome of the Manor, and that he dyed seised, and that the Copyhold discended up­on him, because in truth such an interest is but a particular interest at will, in judgement of Law, although it bee discendable by Cu­stome.

So that I conclude, that an admittance is principally for the benefit of the Lord, to in­title him to his Fyne, and not much necessary for strengthning of the Heires title.

Then will some say, if the benefit which the Heire shall receive by the admittance, will not countervaile the charges of the Fyne, he will never come in, and take up his Copyhold in Court, and so defeat the Lord of his Fyne: [Page 117] I assure my selfe, if it were in the election of the Heire to be admitted, or not to be ad­mitted, he would be best contented without admittance, but the Custome in every Manor is compulsary in this point, for either upon paine of forfeiture of their Copihold or of in­curring some great penalty, the Heires of Copyholders are inforced in every Manor to come into Court, and be admitted according to the Custome within a short time after no­tice given of their Ancestors decease. And thus much of the Grant it selfe. A word of the things granted.

SEC. XLII.

THings that lye not in Tenure, are not Grantable by Copy. As Rents, Baili­wickes, Stewardships, Common in grosse, Advowsions in grosse, and such like. All which are incorporate Hereditaments, and therefore no Rent can issue out of them; nei­ther can they be held by any manner of Ser­vice, but an Advowsion appendant, a Com­mon appendant, or a Faire appendant may passe by Copy, by reason of the principall thing, to which they are appendant, and ge­nerally what things soever are parcell of the Manor, and are of perpetuity, may be granted [Page 118] by Copy, according to the Custome, as Vn­derwoods growing upon the Manor, being things of continuance, (for after they are cut they will grow againe,Co. 4 fo. 31. ex stipitibus) may well be granted by Copy; and so of herbage or any other profit of the Manor; and sometime of the grant of a Copyhold, things shall passe that are severed from the Manor. As if the Lord of a Manor grant his Manor for yeares, except. bosc. & sabosc. growing in certaine Copyhold ground, and the Lessee by his Ste­ward granteth a Copyhold within which Ma­nor there is a Custome that every Copyholder may take within his Copyhold Woods, and Vnderwoods, growing upon the ground for his necessary fuel, notwithstanding this excep­tion in the Lease of the Manor, the Copyhol­der may cut downe Woods or Vnderwoods according to the Custome, though by excep­tion severed from the Manor, for though the Lessee of the Manor, in respect of the excep­tion, could not meddle with the Woods or Vnderwoods, and so it might seeme, p [...]ima facie, very probable that the Copyholder, comming in by the voluntary admittance of the Lessee, should have no more Authority nor interest then the Lessee himselfe had; yet because the Copyholder being once in by Custome, and so his title being grounded up­on [Page 119] Custome is paramount the exception; Therefore, the exception in the Lease of the Manor, though preceeding the Grant of the Copyhold, cannot any way touch or preju­dice the Copyholder. And so, if there be a Custome, within a Manor that Copyholders have used to have Common in the Wastes of the Lord, and the Lord granteth away his Wastes, and after granteth a Copyhold, the Copyholder shall have Common, but in al­ledging the Custome, he shall not say, Quod infra Maner. praed. talis habetur consuetudo. but that till such a time, viz. before the severance, talis habebatur & toto tempore, &c. consuetudo, and then shew the severance. If there be an incer­tainty in the things granted, the Grant is not therefore insufficient; for by the election of him that is the first Agent, it may be made certaine.

As if I grant by Copy, twenty loads of Hasell, or twenty loads of Maple in the dis­junctive to bee cut downe,Co. 4. fo. 31. a Co. 2 fo. 37. a and taken by the Grantee in my Manor of Dale, there the Gran­tee hath election to make choyce of which he pleaseth, because he is to performe the first Act of cutting downe, and taking them, but if I am to cut them downe, and deliver them to the Grantee, then have I the election, and [Page 120] observe this difference touching this point of election.

If a Grant be made in the dis-junctive of two annuall things, and things of continu­ance; if the election belong to the Grantor, and he faileth at the day to make election, yet his election is not determined, but continu­eth the same after the day, that it was before the day, but otherwise it is, where things are not annuall, but are to be performed unica vice tantum.

Therefore if the Lord of a Manor granteth by Copy, twenty trees growing upon Black­acre, or Whiteacre, to be cut downe yea [...] ­ly by himselfe, and to be delivered to the Grantee at such a day, though the Grantor faile at his day to make his election, yet his election is not gone, because the things gran­ted are annuall, but had these trees beene to be delivered to the Grantee once onely, and not yearely, then by the failor of the Gran­tor at the day, the election is devolved to the Grantee.

SEC. XLIII.

ANd thus much of the thing granted, a word of the Instruments, through whose hands, as through Conduit-pipes, the Lands are gradatim, conveyed to the purchasor; I will not speake of those men, that are used as Instruments by speciall Custome to present in Court surrenders taken out of Court. These I have sufficiently spoken of already. I will here point onely at these persons; that by the generall Custome of every Manor, are im­ployed as necessary Instruments in Custo­mary admittances, and will cursarily examine the extents of their authorities, and the qua­litie of their offices.

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

SEC. XLIV.

THe Lords Authority consisteth chiefe­ly in these foure things.

1. In punishing offences, and misdemea­nors committed within his precincts, as not [Page 122] performance of Customes, breach of By-lawes, not discharging of du [...]ies, and such like.

2. In deciding controversies arising about the Title of Copyhold-Land, lying within his bounds; and when he sitteth as Judge in Court, to end debates of this nature, he is not tied to the strict forme of the Common Law, for he is a Chancellor in his Court, and may redresse matters in Conscience upon Bill exhibited, where the Common Law will afford no remedy in the same kinde, as to insist in one familiar example.

If I surrender a Copyhold to the use of a stranger, upon confidence, that such debts be­ing by me discharged, he shall surrender backe this Copyhold; I upon discharge of the debts demand a surrender, and he refu­seth, at the Common Law I were left reme­dilesse, this being a bare confidence, and no Condition, but upon Bill exhibited in the Lords Court I shall be relieved, for the Lord upon proofe of the matter may seize the Copyhold, and readmit me, according to the effect of the Confidence.

3 In admitting Copyhold. And in this [Page 123] Customary power of admittance, the Lord doth somewhat outstrippe the Steward, for the Lord may make either admittances upon voluntary Grants,Co. 4 fo. 27. admittances upon surrren­ders, admittances upon discents, in any place where he pleaseth out of the Manor, but so cannot the Steward: and in giving Licence to Copyholders to aliene by deede, and in this point of Licence, the Lords au­thority doth exceede the Stewards authori­tie; for though some are of opinion, that it is both usuall and warrantable, for the Steward of a Manor in absence of his Lord, to Licence a Copyholder in full Court to aliene by Deede, for as many yeares as he shall thinke good, because he is Judge in the Court, and besides the entry of it in the Court Roll is in this manner. Ad hanc curiam. P.S. petit Licentiam Domini dimittendi, &c. Cui Domi­nus licentiam dat, &c. and therefore this Li­cence being granted in the Lords name in full Court, the Lord shall never enter for a forfeiture, but shall ever be estopped, to say the contrary, but that he did give licence, yet (under reformation be it spoken) I must mi­strust the truth of this opinion; for this power of Licensing Copiholds to alien by Deede, is not Customary, for then it were as proper to the Steward, as to the Lord; but it is a power [Page 124] of interest annexed to the person of the Lord, in respect of his estate in the Manor, and not in any other Collaterall respect; and there­fore if the Steward having a bare authority to execute what the Custome of the Manor doth warrant, sans doubt, hee cannot, virtute officii, grant any unwarrantable Licence to aliene by deede, no more than to commit waste: for the one act, as well as the other, ten­deth to the breach of Custome, and both of them without a sufficient allowance, amounts to the forfeiture of a Copyhold, but by ex­presse words in the Stewards Patent, or by speciall authority given him by the Lord, or by some particular Custome warranting the same, the Steward may in Court lawfully Licence Copyholders, to aliene as well as the Lord may. And thus much of the Lord.

SEC. XLV.

STeward, is derived from those two words, Stede, and Ward; and so any that doth supply anothers place, or that is in any im­ployment deputy to another, may accor­ding to the true sense of the word be termed a Steward; as the high Steward of England, because the King appointeth him in divers matters to exercise his place: and so the un­der [Page 125] Sheriffe may be termed by the name of the Sheriffes Steward, being his Deputy, and how properly the Lords Steward is so named, any man may judge by this, that the whole authority of the Steward is derived from the Lord, as from the Head; and not only so, but withall he representeth the Lords persō in many imployments; for in the Lords absence, he sitteth as judge in Court to pu­nish offences, determine controversies, re­dresse injuries, and the like; and further, some things he performeth in the Lords name, and not in his owne name, for if the Steward ad­mitteth any Copyholder, or by speciall Au­thority, or particular Custome, licenceth a Copyholder to aliene, this admittance and licence shall be made in the Lords name, and the entry in the Court Roll, shall be, Quod Dominus per Senescallū admisit, & licentiav [...]t, and not that the Steward did admit, or li­cence; therefore fithence the Steward hath this measure of authoritie and confidence committed unto him, the Lord shall doe ve­ry well to be very carefull in making choise of his Steward; for if he be defective in a­ny one of these three qualities, Know­ledge, Trust, or Diligence, the Lord may be much prejudiced and damnified; therefore Fleta wisely giveth the Lord this counsell.

Fleta l. 2. c. 6. Provideat sibi Dominus de Senescallo circum­specto & fideli & pacifico & modesto, qui in le­gibus consuetudinibusque provinciae Domini sui in omnibus tueri affectet, quisque Ballivos Domini in sui [...] erroribus & ambiguis sciat instruere & docere, quique egenis parcere, & nec prece vel pretio velit à tramite justitiae devi­are & pervense judicare.

These Stewards for the most part, have Patents for their Offices, yet they may be re­tained by paroll, & this reteiner by paroll, is as effectuall in all points before discharge, as the most effectuall institution by Patent: for a Steward thus retained, may take surrender out of Court, or make voluntary admittances, or any other Act incident to the office of a Steward,Co. 4. fo. 30. b. as well as a Steward instituted by Patent. But in the Kings Manors, a Steward cannot be retained by paroll by the mouth of the Auditor or Receiver; but to make the Stewards authoritie currant,Co. 4. fo. 30. a. especially to make voluntary admittances; it is necessary he have a Patent, and then, by vertue of his Patent, without any speciall Authority, or particular Custome, he may justifie the ma­king of any voluntary admittance, upon Escheates or forfeitures, or the doing of any Act belonging to his Office; but though hee [Page 127] may Ex officio, doe those things without spe­ciall warrant, yet dutie bindes him before he make any voluntary admittance to informe the Lord Treasurer of England, the Chan­cellor, and Barons 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 imperfections of the Stewards person; nor the unlawfulnesse of his authoritie, for be he an Infant, or non comps mentis, an Idiot, or Lunatique, an Out-law, or an Excommunicate; yet what things soever hee performeth, as incident to his place, can never be avoided for any such disabilitie, because he performeth them as a Judge, or at least as Customes Instrument: and for his authority, though it prove but counterfeit, if it come to exact triall; yet if in appearance or outward shew, it seemeth currant, that is, sufficient. As if I grant the Stewardship of my Manor of Dale by Pa­tent, and in the Patentees absence, a stranger by my appointment keepeth Court, this is au­thenticall. If a Grant of a Stewardship be made to one, and for some fault or defect in the Grant, it is avoidable, yet Courts kept by him before the avoidance, shall stand in force: and whatsoever hee did as Steward, are ever unavoidable. As if a Corporation, [Page 128] retaineth a Steward by paroll, and he keepeth a Court, punisheth offences, decideth con­troversies, taketh surrenders, maketh admit­tances, either upon surrenders or discents: these Acts being judiciall shall ever stand for currant, though his authority be grounded up­on a wrong foundation, for a Corporation cannot institute any such officer without writing. And so if the Kings Auditor or Re­ceiver, retaine a Steward by paroll, he may lawfully execute any judiciall Act, but things which he performeth, as Customes instru­ment, not as Judge, such as are voluntary ad­mittances, neither in the retainer by the Cor­poration, or in this retainer by the Kings Of­ficers, shall any whit binde, but if a stanger without the appointment of the Lord, or consent of the right Steward, or without any colour of authoritie, will of his owne head, come into a Manor, and keepe a Court; it seemeth that the performance of any judici­all duty, or the executing of any act whatso­ever will not be warranted, especially if the Court be kept without warning given to the Bayliffe by precept, according to the Cu­stome.

The Office of a Steward may be forfeite three manner of wayes.
  • [Page 129]1. By Abuser.
  • 2. By non user.
  • 3. By Refuser.

By abuser, As if the Steward burne the Court Rolles, or if he taketh a bribe to winke at any offence, or use partiality, in any cause depending before him, these and the like abu­ses will make him subject to a forfeiture.

By non user, as if the Steward by his Patent being tyed to keepe Court at certaine times of the yeare, without request to be made by the Lord if he faileth, and by his failer the Lord receive any prejudice, this is a forfeiture. But if the Lord be not damnified, then this non user is no forfeiture. As if a Parker attends not for the space of three or foure dayes, and no prejudice or damage hapneth in the interim, this is no forfeiture: and in Offices, which con­cerne the administration of Justice, or the Commonwealth the Law is more strict then in these Offices which concerne private men: for where an officer ex officio, or of necessity ought to attend for the administration of Justice, or for the good of the Commonwealth, there non user, or non attender in Court is a forfeiture, though this be prejudiciall to no man, as the office of the Chamberlaine in the Exchequer, a Protonotary Clarke of the Warrants Exi­gentur Filizar, or the like in the Common Pleas, because the attendance of these and the [Page 130] like officers, is of necessity for the admini­stration of Justice, so the attendance of the Clarke of the Market, is of necessity for the good of the Commonwealth, and so is hol­ding of the Sheriffes turne, &c.

By refuser the office of a Steward may be thus forfeited, if the Steward be tyed by his Patent to keepe Court upon a demand or re­quest, to be made by the Lord, if the Lord demandeth or requesteth him to keepe a Court, and he faileth; this is a forfeiture, though the Lord be thereby nothing damni­fyed, and thus much of the Steward.

SEC. XLVI.

THe under steward is the Stewards depu­ty, and sometimes appointed by writing, sometimes by paroll, and the extent of his Authority, is as great as the Stewards owne Authority, and his office consisteth in per­formance of the selfe same duties, that the high Steward himselfe is to performe, onely in this point the power of the Steward goeth beyond the power of the understeward, that the Steward can make an admittance out of Court, and it shall stand good if entry be made in the Court Roll, that he that is admitted, hath paid his fine and hath done fealty, but the [Page 131] understeward though he may take a surrender out of the Court, yet he cannot make any ad­mittance out of Court, without especiall Au­thority or particular Custome.

Some have thought, that an understeward may be made without speciall words in the Stewards Patent, authorizing him to make a Deputy, but surely since it is an office of knowledge, trust, and discretion it cannot, un­lesse it be in cases of necessity. As if an of­fice of Stewardship descend unto an Infant, he may make a Deputy, because the Law pre­sumeth he is himselfe uncapable to execute it, so if it be granted to an Earle in respect of th'exility of the Office in a base Court, and of the dignity of the person, who is Praepositus Comitatus, and had in ancient time the charge and custody of the whole shire, whose atten­dance the Law intendeth to be most necessa­ry, upon the King and the Commonwealth, therefore it is implyed in Law for the con­veniency, that hee may make a Deputy, for whom he ought to answer. This is one ob­servation touching understewards, in admit­tances made by understewards, aswell as in admittances made by the Stewards themselves it is good order to expresse in the Copy, and in the Court Roll, the name of the under­steward, [Page 132] or of the Steward, because in plea­ding any admittance a man must say that hee was admitted by such a one understeward or Steward, naming his name. And this shall suffice touching the manner and meanes of granting Copiholds: Suffer mee now in the fourth place to point at the severall estates of Copiholders, together with their severall qua­lities incident to their severall estates.

SEC. XLVII.

ALl estates whatsoever may be reduced to one of these three heads.
  • 1. Inheritance.
  • 2. Francktenant.
  • 3. Chattells.

All Inheritances are of two sorts, either Fee simples, or Fee tailes.

Of Fee simples, some are determinable, some are undeterminable.

Determinable, as where Land is given to a man and his heires, for so long time as Pauls steeple shall stand.

Vndeterminable, as where Land is given to a man and his heires, without further limita­tion.

Of Fee tailes, some are generall, some are speciall.

Generall, as where Land is given to a man and the heires of his body, or heires males, or females of his body.

Speciall, as where Land is given to a man, and the heires, males or females, which he shall beget of such a woman.

All Francketenants are of two sorts, either created by the act of the party, or by the Act of the Law.

Of Francketenants created by the act of the party, some are determinable by death, some by collaterall meanes.

By death, as estates granted during the life of the Grantor, of the Grantee, or of a Stran­ger.

By collaterall meanes, as estates granted quia diu fuerit innupta, to a Widdow qùia diu [Page 134] remanserit vidua, or to a Minister, quamdiu Sa­cerdotium exercuerit.

Of Francke tenants created by the act of the Law, some are Francketenants simpliciter, some secundum quid simpliciter, as the estates of a tenant in Dower, of a tenant by the cour­tesie of an occupant, a tenant in taile, after pos­sibility of issue extinct, secundum quid, as the estates of a tenant by Statute, Merchant, Stat. Staple & Elegit. who though they are to have the Land, but for so many yeares as will give a plenary satisfaction to their debts, yet by the Stat. of Westmin. 2. they may mainetaine an Assize, which no other tenant having but a Chattell can have.

All Chattells are either certaine, or incer­taine, of Chattells certaine, some are in themselves certaine, some are made certaine by relation to a certainty. Certaine in them­selves, as where Lands are granted for 20. 30. or 40. yeares. Certaine by relation to a cer­tainety, as where Land is granted for so ma­ny yeares as I. S. hath acres of Land.

Of incertaine Chattells, some are incer­taine in their commencement, some incer­taine in their determination.

In their commencement, as where a Guar­dian hath an estate during the minority of the heire, all these estates either by the generall or by the particular Customes of Manors, are of Copyholds aswell as of Freeholds, in what manner soever an estate in Fee simple is war­ranted by the Custome,Co. 4. fo. 23. most inferior estates are by implication likewise warranted. All Francke tenants created by the act of the party, the estate of an occupant, and all Chattells whatsoever, without any other particular Custome, are hereby warranted.

But the Law is otherwise,Co. 4. fo. 22. a. of estates in Dower by the courtesie, by Statute Merchant, Statute Staple, or Elegit, for as long as such a Copyhold, by the Custome of the Manor grantable in Fee simple, continueth in the Copyholders hands, it is not lyable to any of these estates, but if once it commeth to the Lord by Escheate forfeiture, or by other meanes, so long as it remaineth reunited to the Manor, it is in the nature of a Freehold, and shall be subject to the charges and in­cumbrances, as Land at the Common Law, and howsoever by implication these estates are not allowed in Copyholds, continuing in the Copyhold possession, yet by particu­lar [Page 136] Custome the Wife may bee Tenant in Dower, the Husband Tenant by the Curte­sie, a stranger Tenant by Stat. Merchant, Stat. Staple, or Elegit, of a Copyhold, resting in the Copyhold, aswell as if it rested in the Lord, whether an estate tayle, or an estate Tayle, after possibility of issue extinct, which hath a necessary depending upon an estate Taile may by any particular Custome bee allowed, that I may dispute, but cannot de­termine; for it is vexata quaestio, much con­troverted; but nothing concluded, I will briefely touch the reasons alledged on both sides. They which are against the validity of Intailes by speciall Custome, doe chiefely urge these two reasons, that no estates tayles were before the Stat. de donis conditionalibus, but all Inheritances were Fees conditionall, and the Statute being made 13. E. 1. which is within the memory of man, it cannot be that any speciall Customes have any Com­mencement, since the Statute, for then a Cu­stome might begin within time of memory, which is altogether repugnant to the rules of Custome.

Two great inconveniencies would ensue, if a Copyholder might be Intailed by speciall Custome, because neither fine nor Common [Page 137] recovery can barre it; so that he hath such an estate, that he cannot of himselfe, without the assent of the Lord, dispose of it, either for the payment of his debts, for thē ad­vancement of his wife, or preferment of his yonger sonnes.

SEC. XLVIII.

THe maine reasons insisted upon in de­fence of intailing Copyholds are these.

1. In divers Manors they have beene from time to time, not onely reputed as Tenants in tayle, but in every mans mouth termed by that name.

2. A Formed on in the Descender lyeth of a Copyholder, which Writ none can bring but Tenant in tayle.

3. A remainder limitted upon such an estate in such Manors hath beene allowed, and therefore is no Fee conditionall; for upon a Fee, whether absolute or conditionall, a Render can by no meanes depend.

4. It is a common usage there by a Reco­very to docke intayles of Copyhold▪ or to [Page 138] defeate these estates by presentment, that the Copyholder hath committed a forfei­ture, and so the Lord to seize, and then to surrender it to the purchaser; and therefore there is not that inconvenience which is sup­posed in the Copyhold, scilicet, want of power to dispose of such an estate without the Lords consent.

5. Much inconvenience would depend upon this if Copyholds might not be in­tailed, for it would tend to the subversion and destruction of many mens estates, which from time to time they have enjoyed with­out contradiction, and therefore for the quiet of the Common-wealth how necessary it is, that Copyholds should be intayled, let any man judge.

Thus much of the severall estates of the Copyhold. A word of their severall quali­ties incident to severall estates.

SEC. XLIX.

WHat qualities soever are necessarily incident to estates at the Common Law, are incident to estates by Custome. In illustrating this I will confine my selfe to the [Page 139] discussing of these two points.

1. What words will create Copyholds of inheritance, and what Copyholds of Franck-Tenant.

2. How Copyholds of inheritance shall descend.

Touching their creation, Copyholds of in­heritance,Co. 4. fo. 2 [...]. and Copyholds of Franck-Tene­ment, are created by the same words that Inheritance and Franck-Tenement at the Common Law are created by.

If a Copyhold be granted to a man, and to his heires males, or heires females.

If to a man & sanguini suo hereditabili.

If to a Deane and Chapter, or to a Major & Commonalty, without any expresse estate, or without a limitation of some inferior e­state. In all these Grants, a perfect estate in Fee passeth.

And so peradventure if I surrender a Copy­hold to a man and his heires, and he reciting this estate, re-surrendreth in the same man­ner to me, that I surrendred to him, not ma­king any mention of my heire, yet this reci­tall seemeth sufficient to passe a good Fee-simple.

So, if I surrender unto you as large an estate, as I.S. hath in his Manor of D. and he hath a Fee-simple in his Manor, it is some­what probable, that an estate in Fee simple should passe, by reason of his relation with­out the word heires.

If a Copyhold be surrendred to a man, & semini suo haereditabili de corpore, or to a man, & haeredibus ex ipso precreatis, or to a man in Franck-marriage with his wife, in these Grants an estate tayle passeth in the first, without the word heires, in the second, without the word body; in the third without either.

If the King by his Steward granteth a Copyhold to a man, and to his heires males, or heires females, no Fee-simple passeth, be­cause the Lord never intended to passe such an estate.

If a Copyhold be Granted to an Abbot, and to his heires, an estate for life onely pas­seth.

So if I Grant a Copyhold to a man in Fee-simple, ac sanguini suo imperpetum, or sibi & assign. suis impe [...]pectum; yet the word heires wanting no greater estate than for life pas­seth.

The same Law is, if a Copyhold be granted to a man, and to his heires, as long as I. S. shall live, this is onely an estate, per an­ter vie, & a rend. limitted upon this estate, is good.

But if a Copyhold be granted to a man, and to his heires, as long as such a tree shall grow in such a ground, this is a good Fee, and a render limitted upon it is void.

If a Copyhold be granted to I. S. and I. N. & haeredibus, they are joynt Tenants for life; and no inheritance passeth unto either, because of the uncertainty for want of this word (suis) but if a Copyhold be granted to I. S. onely & haerend. a good Fee-simple passeth without the word suis.

If a Copyhold be granted to a man, & hae­red bus, an estate tayle doth not passe, for want of the words de corpore. And if a Co­pyhold be granted to a man, & liberis aut puer. suis de corpore; an estate taile doth not passe for want of this word (heires) for what estates soever are intayles since the Statute De donis Conditionalibus were Fee-simples Conditionall; but this could be no Fee-simple conditionall before the Statute with­out the word (heires) and therefore no in­tayle [Page 142] since the Statute. And for the same reason, if a Copyhold be granted to a man, and to the issues males of his bodie an estate for life onely passeth.

If a Copyhold be granted to a man, with­out expressing any certaine estate by impli­cation of Law, an estate for life onely pas­seth; and if I grant a Copyhold to three ha­bendum successive, they are joynt Tenants, un­lesse by speciall Custome the word successive make their estates severall. Thus much touching the creation of Copyhold estates.

SEC. L.

THe discents of Copyhold of inheritance are guided and directed by the rules of the Common Law, as well as the creation of Copyhold estates.

If a Copyholder in Fee-simple having issue, a sonne and a daugher by one venter, and a sonne by an other venter, dieth, and the sonne by the first venter entreth and di­eth; the Land shall discend to the daugh­ter, Quia-possessio fratris de feodo simplici facit sororem esse haeredem.

But if a Copyholder in tayle, have issue, a [Page 143] son and a daughter by one venter, and a son by another, venter dieth, and the sonne by the first venter entreth and dieth, the sonne of the second venter shall inherit.

If a man having issue, a sonne and a daugh­ter by one venter, and a sonne by another venter, the eldest sonne purchaseth a Copy­hold in Fee, and dieth without issue, the daughter shall have the Land, not the yonger sonne, because he is but of the halfe blood to the other.

If a man hath a Copyhold, by discent from his mothers side, if he die without issue, the Land shall goe to the heires of the mo­thers side, and shall rather escheate, than goe to the heires of the fathers side; but if I purchase a Copyhold, and die without issue, the Land shall goe to the heires of my Fathers side: but if I have no heires of my fathers side, it shall goe to the heires of my mothers side rather than escheate.

If there be Father, Vnckle and Sonne, and the sonne purchaseth a Copyhold in Fee, and dieth without issue, the Vncle shall in­herit and not the Father, because an inheri­tance may lineally discend, but not as­cend.

If there be three brothers, and the middle brother purchaseth a Copyhold in Fee, and dieth without issue, the eldest shall inherit, because the worthiest of blood.

If there be two Coparteners, or two Te­nants in Common of a Copyhold, and one dieth having issue, the issue shall inherit, and not the other by the survivership; but other­wise it is of two joynt Tenants. Should I give way to my Penne, and write of this Theame till I wanted matter to write on, I should make a large Volume in dilating this one point; therefore I will contract my selfe, intreating you to supply by your private co­gitations, what I have either willingly or un­wittingly passed over in silence, onely take this caveat by the way.

Though all qualities necessarily incident to estates at the Common Law, are likewise in­cident to Copyhold estates; yet the Law is not so of collaterall qualities without speciall Custome;Co. 4. fo. 22. a. and therefore a Copyhold shall be no assets to the heire.

A discent of a Copyhold, shall not toll an entry. A surrender made by Tenant in tayle (admit a Copyhold may be intayled) or by a Baron of a Copyhold, which he hath in right [Page 145] of his wife shall make no discontinuance, be­cause these are collaterall qualities, and not necessarily incident.

Thus much of the severall estates of Copy­holds together with their severall qualities incident to their severall estates. I come now in the first place to examine how Copyhol­ders are to impleade, and be impleaded.

SEC. LI.

A Copyholder cannot in any Action re­all, or that savoureth of the realty, or hath a dependance upon the realty implead or be impleaded in any other Court, but in the Lords Court, for or concerning his Copy­hold, but in actions that are meerely personall, he may sue or be sued at the Common Law.

If a Copyholder be ousted of his Copyhold by a stranger, he cannot implead him by the Kings Writ, but by Plaint in the Lords Court, and shall make protestation to prosecute the sute in the nature of an Assize of novell dissei­sin, of an Assize of Mort D'ancestor of a For­medon in the Discender, Reverser, or Re­mainder, or in the nature of any other Writ, as his cause shall require, and shall put in pleg. de prosequend.

If a Copyholder be ousted by the Lord he cannot maintaine an Assize at the Com­mon Law, because he wanteth as Franck-Tenant, but he may have an action of tres­passe against him at the Common Law; for it is against reason, that the Lord should be Judge where he himselfe is a party.

If in a plaint in the Lords Court touching the tytle of a Copyholder, the Lord giveth false judgement, he cannot maintaine a Writ of false judgement, for then he should be re­stored to a Francke-Tenant where he lost none.

No Copyholder of base Tenure in ancient Demesne can maintaine a Writ of droit close, or a Writ of Monstravêrunt, but Tenants of Francke-tenure in ancient demesne can.

A Copyholder that may cut downe Timber trees by Custome, by licence of the Lord, maketh a Lease for yeares, the Lessee cutteth downe trees, the Copyholder shall not have a Writ of waste, but shall sue at the Lords Court to punish this waste.

If a feme Dowable, by Custome of a Co­pyhold; by plaint in the Lords Court, reco­vereth [Page 147] Dower and damages, no action of debt lieth at the Common Law for these da­mages, because the action, though it be in it selfe personall, yet it dependeth upon the re­alitiy.

If a Copyholder maketh a Lease by Co­py for Yeares, or by Deede with Licence, an action of debt lieth for the Rent, reserved upon either Lease at the Common Law; but I much doubt whether he can avow for the Rent, either in the one or in the other, no more than Cestuy que use, before the Statute 27. H. 8. cap. 10. could avow for the Rent re­served by him upon a Lease for yeares, and yet he could maintaine an action of debt for such a Rent, because an action of debt is grounded upon the contract.

If a stranger cut downe trees growing in the Copyhold ground, an action of trespasse lieth at the Common Law against him; so doth it against the Lord, where hee cutteth them downe, when by Custome they belong to the Tenant, because this is a meere per­sonall action, and damages onely are to be recovered.

And if a copyholder without Licence, maketh a Lease for one yeare, or with Li­cence maketh a Lease for many yeares, and [Page 148] the Lessee be ejected, he shall not sue in the Lords Court by plaint, but shall have an ejection firme at the Common Law, because hee hath not a Customary estate by Copy, but a warrantable estate by the rules of the Common Law. Thus much of the manner how Copyholders are to impleade, and be impleaded.

SEC. LII.

I Come now in the sixt place, to shew un­der what Statutes Copyholders are Com­prehended. Copyholders are comprehended under Statute, either by expresse limitation in precise words, or by a secret implication upon generall words: by expresse limitation in precise words;

As by the Statute of the first of R. 3. cap. 4. it is expressely provided, that a Copyhol­der having Copyhold Land, to the yearely value of twenty sixe shillings and sixe pence; above all charges may be impanelled upon a Jury, as well as he that hath twenty shillings, per annum of Freehold-Land.

So by the Statute of 1. E. 6. cap. 14. it is expres­ly provided, that upon the dissolution of Ab­byes, and Monasteries, Copyholds should [Page 149] continue as they did before the Statute, and should fall into the Kings hands.

So by the Statute of 2. E. 6. cap. 8. it is ex­presly provided, that the interest of a Copy­hold, should be preserved, notwithstanding it be not found by Office, after the decease of the Kings Tenant.

So by the Statute of 1. Mar. cap. 12. it is expresly provided, that if any Copyholder being Yeoman, Artificer, Husbandman, or Labourer; and being of the age of eighteene or more, under the age of sixtie; not sicke, impotent, lame, maymed, nor having any o­ther just or reasonable cause of excuse upon request made by any man in authourity, re­fuseth to aide Justices in suppressing of rio­tous persons, that then immediately he shall forfeit his Copyhold to the Lord, of whom it is held during the Copyholders naturall life.

So by the Statute of 5. Eliz. cap. 14. it is expresly provided, that the forging of a Court Roll, to the intent to defraud a Copy­holder, shall be as well punishable, as the forging any other Charter, Deede, or Wri­ting sealed, whereby to defeate a Copyhol­der or Freeholder.

So by the Statute of 13. Eliz. cap. 7. It is expresly provided, that the Copyhold Land, as well as the Freehold Land of a Bankerupt, shall be sold for the satisfying of the Credi­tor.

So by the Statute of 14. Eliz. cap. 6. It is expresly provided, that if any of the Queenes subjects goeth beyond the Seaes without Li­cence, that then the Queene shall not onely take the ordinary profits of the fugitives Copyhold Land, as they arise, but shall let, set, and make Grants by Copy, and usuall Wood-sales, and other things, to all intents and purposes, as a Tenant pro terme durante vie, may doe.

So by the Statute of the 35. Eliz. cap. 2. It is expresly provided, that if any person or persons being convicted of recusancie, re­paire not home to their usuall place of abode, not removing from thence above five miles distant, that then any person; or persons thus offending, shall not onely forfeit their Free­hold Land to the Queene; but withall their Copyhold Land to the Lord, or Lords of whom it is holden.

Thus have I shewed in briefe under what Statute Copyholders are comprehended by [Page 151] expresse limitation in precise words. Now I will shew you as briefely as I can, under what Statute they are comprehended by secret implication upon generall words.

SEC. LIII.

SOme hold that all Statutes that speake ge­nerally of Tenants, extend to Tenants by Copy: but it is much to be feared that wee shall wander from the Truth, if we give cre­dit to this conceit: for if wee peruse the Sta­tute, we shall meete with an infinite number of them, that speak generally of Tenants, and yet touch not Tenants by Copy; wherefore not giving way to this opinion, as being er­ronious, I will set you downe an infallible rule, which will truely direct you in the ex­position of the generall words in Statutes; and that is thus.

When an Act in Parliament altereth the service tenure interest of the Land,Co. 3. fo. 8. or other thing in prejudice of the Lord, or of the Cu­stome of the Manor, or in prejudice of the Tenant, there the generall words of such an Act in Parliament extend not to the Copy­hold; but when an Act is generally made for the good of the Common-wealth, and no [Page 152] prejudice may accrue, by reason of the alte­ration of any interest, Service, Tenure or Custome of the Manor there usually Copy­holds are within the generall purveiw of such Acts.

The Statute of West. 2. ca. 1. of intailes, ex­tendeth not to Copyholds, because it would be prejudiciall to the Lord; for by this meanes the Tenure is altered: for the Donee intayle, without any speciall reservation ought to hold of the Doner by the same Ser­vice that the Doner holdeth over; besides the words of the Statute are, Quod voluntas Donator in charta Domini sui manifesta expres­sa decetero observit, which proveth, that the intent of the Statute was, that no heredita­ment should be intailed within this Statute, but such an one as either was given, or at least may be given by Charter, or Deede; but Copyholds are no such hereditaments, and therefore not within the body of the Act; yet it is holden, that Custome with the coope­ration of the Statute will make an estate tayle.

The Statute of W. 2. ca. 20. which giveth the Elegit, extendeth not to Copyhold, be­cause it would be prejudiciall to the Lord, [Page 153] and a breach of the Custome, that any stranger should have interest in the Lands holden by Copy without the admittance, and ordinary allowance of the Lord.

The Statute of 16. R. 2. cap. 5. which ma­keth it a forfeiture of Lands, Tenaments, and Hereditaments, to the purchasor of Excom­munications, Bulls, &c. in the Court of Rome, against the King, &c. extendeth not to Copyhold, because it would be prejudici­all to the Lord to have the King so farre in­tereressed in his Copyhold without his con­sent.

The Stature of 2. H. 5. ca. 7. of Heretiques extends not to Copyholds; for though the Lord of a Manor is yearely to receive a be­nefite, in having the Lands after the yeare and the day forfeited unto him; yet because the King is a sharer in this for feiture; therefore Lands by Copy are not compre­hended under the generall words; besides the Statute speaketh of the Kings having annuum diem, & vastum of these Lands forfeited for heresie, as in Lands forfeited for felony; whereby it appeareth, that the meaning of the Statute is, that such Lands onely should be forfeited; in which the King by the or­dinary [Page 154] course of the Law should have An nuum diem & vastum: if the Tenant of them had committed felony, but such lands are not Lands by Copy; for if a Copyholder committeth felony, his Copyhold is pre­sently forfeited to the Lord; therefore Co­pyholds are out of the generall purview of this Statute.

SEC. LIV.

THe Statute of 27. H. 8. ca. 10. of Vses, toucheth not Copyholds, because the transmutation of possession, by the sole operation of the Statute without allow­ance of the Lord, or the Agreement of the Tenant, would tend to the prejudice, both of the Lord, and of the Tenant, and the branch of the same Statute which speaketh of Joyntures toucheth not Copy­holds, because Dowers of Copyholds are warranted by speciall Custome onely, and not by the Common Law, or by the generall Custome.

The Statute of 31. of H. 8. ca. 1. & 32. H. 8. cap. 32. by which joynt-Tenements and Te­nants in Common are compellable to make partition by a Writ de partitione faciend. As Coparteners at the Common Law, touch [Page 155] not Copyholds, because this alteration of the Tenure without the Lords consent may sound to the prejudice of the Lord.

The Statute of 32. H. 8. ca. 28. which confirmeth Leases for 21. yeares, or three Lives made by Tenants in tayle, or by the husband and wife, of the Lands of the wife, touch not Copyhold: for the Statute speak­eth of Leases made by Deede onely; so that the intent of the Statute is to warrant the Leasing of such Lands only as are Grantable by Deede, but such are not Copyhold-lands: for though they may by Licence of the Lord be demised by Indenture, yet in their owne name they are demiseable onely by Copy; and therefore out of the generall purview of the Statute, for the same reason, the same Statute cap. 34. which giveth an entry to the Grantee, of a Reversion, upon the breach of a Condition by the particular Tenant toucheth not Copyholds.

SEC. LV.

THe Stat. of 17. E. 2. cap. 10. which giveth the Wardships of Idiots Land unto the King, toucheth not the Idiots Copyhold; for thereby great prejudice would accrue to the Lord.

But the Statute of Marton, cap. 1. which giveth damages to a feme, upon a Recovery in a Writ of Dower,Co. 4. fo. 30. b. where the Baron dieth seised, extendeth to Copyhold.

So that the Statute of Westm, 2. cap. 3 and the three severall branches of the same Sta­tute.

1. The one which giveth the Cui in vita, upon a discontinuance made by the Baron.

2. The second which giveth the receit un­to the feme upon the Barons refusall to de­fend the wives title.

3. And the third, which giveth a quod ei deforceat to particular Tenants extends to Copyhold.

So that the Statute of 31. H. 8. ca. 13. of Monaster. which provideth for the avoidance of doubling of estates,

And the Statute 32. H. 8. cap. 9. against Champertie, and buying of Litigious Titles, and chap. 28. which giveth an entry in Liew of a Cui in vita, Co 4. fo. 26. extendeth all to Copyholds, be­cause these Statutes are beneficiall to the Common-wealth, and not at all prejudiciall [Page 157] to the Lord in the alteration of Tenure estate Service, &c.

So the Statute of 4. H. 7. cap. 24. of Fines extendeth to Copyholds; for if a Copyhol­der be disseised, and the Desseisor levieth a Fine with proclamations, and five yeares pas­sed without any claime made; this is a barre both to the Lord, and to the Copyholder.

So if a Copyholder make a Feoffment in Fee, and the Feoffee levieth a Fine with pro­clamation, and five yeares passe, the Lord is barred; but if a Copyholder levie a Fine, and five yeares passe, the Lord is not barred, for the Fine levied the Copyhold, having no Franck-Tenant, is utterly voide. And whereas it hath beene doubted, that this Sta­tute should not extend to Copyhold; but the Lord should hereby receive grand prejudice;Co. 9. fo. 105. a. for he should not onely lose the Fines, upon alienations or descents, and the benefit of for­feiture, but should withall be in hazard to be barred of his Franck-tenant and inheritance.

To that I answer, if the Lord receive any such prejudice, it is through his owne default, for not making claime, for in regard of the privitie in estate, that is betweene him and [Page 158] the Copyholder he may make claime, as well as the Copyholder himselfe; Et vigilantibus non dormientibus jura subveniunt.

Thus have I shewed under what Statutes Copyholds are comprehended. I come now in the seventh place, to speake of Fines.

SEC. LVI.

A Fine is a summe of money paide to the Lord of the Mannor for an Income into any Lands or Tenements. In some Manors Fines are certaine, in some incertaine.

Fines of Co­pyholds.By speciall Custome Copyholders are to pay Fines upon Licences granted unto them to demise by Indenture, but by generall Cu­stome they are to pay Fines onely upon ad­mittances.

If the Lord having a Copyhold by Es­cheate forfeiture, or other meanes, maketh a voluntary admittance, a Fine is due unto the Lord.

If a Copyholder surrendreth to the use of a stranger, and the Lord admitteth, a Fine is due to the Lord.

So if a Copyhold descendeth, and the Lord admitteth the heire, where by the Cu­stome of the Manor, the wife is to have Dower, and the husband is to be Tenant by the curtesie of a Copyhold, either of them shall be admitted, and shall pay a Fine to the Lord.

If a Copyhold be granted du rante vie, and the Grantee dieth, living Cestuy que vie, and a stranger entreth as a generall occupant he shall be admitted, and shall pay a Fine.

And so if a Copyhold be granted to one and his heires, durante vie; and the Grantee dieth, and his heire entereth as a speciall oc­cupant, where by the Custome of the Manor, a Copyhold may be extended, upon the ex­tent the party shall be admitted, and shall pay a Fine.

Where by the Custome of the Manor, the Bailiffe of the Manor, is to have the Wardship of the Copyhold heire; being un­der the age of fourteene, such a Guardian shall neither be admitted, nor pay a Fine, be­cause he is but a partnor of the profits, and that not in his owne right, but in the right of him to whom he is Guardian.

If the Copyhold Lands of a Bankerupt be sold according to the Statute of the 13. Eliz. cap. 7. the Vendee shall be admitted and pay a Fine.

If a Villaine purchaseth a Copyhold, the Lord of the Villaine may enter and seize it, and the Lord of the Manor shall admit him and have a Fine.

If a Copyhold be granted upon Conditi­on, and the Condition be broken, and the Granter entreth, hee shall not be admitted, neither pay a Fine, because upon the breach of the Condition, and the entry, he is to all intents, in Statu quo prius, as if no grant at all had beene made.

If a Copyholder in Fee surrendreth for life, reserving the Reversion, and the Lessee for life dieth, the Copyholder shall not be ad­mitted to his Reversion, neither shall he pay a fine, because the Reversion was never out of him.

If a Copyholder be disseised, and then en­tereth upon the Desseisor, or recovereth by plaint, in the nature of an Assize, he shall not be admitted, neither shall he pay a Fine, for he continueth still Tenant by Copy, not­withstanding [Page 161] the disseisin, but where by a plaint a Copyhold is recovered upon the ac­cruer of a new Tytle, where he that recove­reth was never admitted nor paid Fine; there upon his recovery, an admittance is requisite, and a Fine is due: as if a Copyholder dieth seised, a stranger abateth, and the heire reco­vereth by plaint in the nature of an Assize of Mort d'auncester upon this recovery hee shall be admitted and pay a Fine.

If I take a wife, Copyhold in Fee, though by this inter-marriage, there accrueth a pre­sent interest to me; yet because I am seised, non jure proprio, but jure alieno, therefore I shall not be admitted, neither shall I pay a Fine.

The same Law is,Vid. Plowden com. 4 18. b. if she be a Termor of a Copyhold; for though the terme by the inter-marriage be so vested in me, that I may dispose of it without controule; yet because before disposer I am possessed of it, but in the right of my wife; therefore I shall neither be admitted, nor pay a Fine.

If a Copyhold be surrendred for life, the remainder to a stranger, though the admit­tance of Tenant for life be sufficient to invest the estate in him in the Remainder, yet upon [Page 162] the death of Tenant for life, hee in the Re­mainder shall be admitted and pay a Fine.

So if a Copyhold be granted to three habend. success. vie whereby Custome suc­cessive is in force; if any one dieth, he that next succeedeth shall be admitted and pay a Fine.

If two Coparteners, or Tenants in Common of a Copyhold be, and the one dieth, and the other hath all by discent, hee shall be admitted, and shall pay a Fine. But if two joynt-Tenants be of a Copyhold, one dieth, the other shall have all by the sur­vivorship without admittance, or paying Fine, because joynt-tenants to all intents and pur­poses, are seised per my, & per tout.

If two severall Copyholders joyne in a Grant of their Copyhold by one Copy; or if one Copyholder having severall Copy­holds, granteth them by one Copy; yet the Grantee shall pay severall Fines, for they shall inure as severall Grants.

Co. 4 fo. 27. b.But if two joynt-Tenants, two Tenants in Common, or Tenant for life, and hee in the Remainder joyne in the Grant of a Copy­hold, one Fine onely is due, and it shall inure, [Page 163] as one Grant onely: so if a surrender be made, and after a common Recovery is had by plaint in the nature of a Writ of entry, in Le post, for the better assurance, one Fine onely shall be paid.

And thus much of Fines. I come now in the next place to Forfeitures; wherein I will chiefely rely upon these foure points.

  • 1. What Acts amount to a Forfeiture.
  • 2. What persons are able to forfeit.
  • 3. What persons are able to take benefit of a Forfeiture.
  • 4. What Acts amount to a confirmation of an estate forfeit.

SEC. LVII.

OF Acts which amount to Forfeiture, some are Forfeits, eo instante,, that they are committed: some are not Forfeits till presentment. Offences which are apparant and notorious, by which the Lord by com­mon presumption, cannot chuse but have notice are Forfeitures, eo instante, that they are committed, as if by speciall Custome, upon the discent of any Copyhold of Inhe­ritance, [Page 164] the heire is tyed upon three solemne Proclamations made at three severall Courts, to come in and be admitted to his Copyhold, if he faileth to come; in this failer is a forfei­ture Ipso facto.

So if a Copyholder be sufficiently warned to appeare, and he faileth, this is a forfeiture Ipso facto.

But if he be hindred by sicknesse, or by over flowing of waters, or if he be much in debt, and feare to be arrested, or if hee be a Bankerupt, and keepeth his house, then his default is no forfeiture.

If a Copyholder in the Court be called, and summoned to be sworne of the homage, and refuseth; this is a forfeiture Ipso facto.

So if a Copyholder be sworne of the ho­mage, and then refuseth to present the Ar­ticles according to his Oath; this is a forfei­ture Ipso facto.

So if a Copyholder will sweare in Court, that he is none of the Lords Copyholder, this is a forfeiture Ipso facto.

But if a Copyholder in presence of the Court speaketh unreverent words of the [Page 165] Lord, as that the Lord exacteth & extorteth unreasonable Fines, and undue-Services, this is fineable only, but no forfeiture; and if he saith in Court, that he will devise a meanes no longer to be the Lords Copyholder, this is neither cause of fine not forfeiture; for perad­venture the meanes that hee intended was lawfull, viz. by passing away his Copyhold; Et ubi sensus verborum est multiplex, verba semper sunt accipienda in meliori sensu.

If the Steward sheweth a Court roll to a Co­pyholder, to prove, that his Land is holden by Copy, and that the Copyholder saith he is a Freeholder, and sheweth a Deed, pretending thereby to procure his Land to be Freehold, and teareth in peeces the Court-Roll, this is a forfeiture Ipso facto.

So if the Lord,Co. 4. fo. 27. b. upon the admittance of a Copyholder; the Fine, by the Custome of the Manor being certaine, demandeth his Fine, and the Copyholder denieth to pay it upon demand, this is a forfeiture ipso facto.

So if a Copyholder will sue a Replevin a­gainst the Lord, upon the Lords lawfull di­stresse for his Rent or Services, this is a for­feiture Ipso facto.

But if the Copyholdder be in doubt whe­ther it be due or not, and therefore intreateth the Lord, that the homage may inquire the truth, this is no forfeiture.

If the Fine by the Custome of the Manor, be incertaine, though a reasonable Fine be assessed, yet because no man can provide for an incertainty, the Copyholder is not bound to pay it presently upon demand, but shall have convenient time to discharge it, if the Lord limit no certaine day for payment thereof, and if within convenient time it be not discharged, this is a forfeiture without presentment.

But if the Fine be unreasonable, though it be never paid, it is no forfeiture, and it shall be determined by the opinion of the Justices before whom the matter dependeth, either upon a demurre, or in Evidence to the Jury, upon the confession or proofe of the yearely value of the Land, whether the Fine be rea­sonable or not; for if the Lords might Assesse unreasonable Fines at their pleasures, then most estates by Copy, which are a great part of the Kingdome, and which have con­tinued time out of minde, might now at the will of the Lords be defeated, and destroyed, which would be very inconvenient.

If the Lord demandeth his Rent, and the Copyholder denieth to pay it, this is a forfei­ture Ipso facto.

So if the Copyholder saith, that hee wan­teth money to discharge the Rent, and there­fore intreateth the Lord to forbeare, untill he be better provided, unlesse the Lord giveth his consent; this non payment is a forfeiture, Ipso facto.

For a Copyholder knowing his day of payment is to provide against the day; but if the Lord commeth upon the Copyholders ground, and demandeth his Rent, and neither the Copyholder himselfe, nor any other by his appointment, is there present to answer their demand, though this be a deniall in Law of the Rent, yet this is no forfeiture.

But if the Lord continueth in making de­mand upon the ground, and the Copyholder is still absent, this continuall deniall in Law, amounteth to a deniall in fact, and maketh the Copyholders estate subject to a forfeiture without presentment.

If a Copyholder for life suffereth a Reco­very by plaint in the Lords Court, as Co­pyhold of the inheritance, this is a forfeiture Ipso facto.

But if he surrender in Fee, this is no forfei­ture, because it did not passe by Livery.

If a Copyholder committeth waste volun­tarily or permissive, this is a forfeiture Ipso facto.

Voluntary, as if hee plucketh downe any ancient built house, or if he buildeth any new house, and then pulleth it downe againe; or if he ploweth medow, so that thereby the ground is made worse; or loppeth the trees, or selleth the lopping; or if he cutteth downe any fruit-trees for fuell, having other wood sufficient, this and the like voluntary waste are forfeitures Ipso facto.

Permissive, as if he suffereth his house to decay, or fall to ground for want of neces­sary reparations; or if hee suffereth his me­dowes for want of mending his banckes to be surrounded, so that it becomes Rushy, or worth nothing; or his arrable ground, so to be surrounded, that it is become unprofitable. These and the like permissive wasts are for­feitures Ipso facto.

And thus much of Acts which are forfei­tures, eo instante, that they are committed. A word of those Acts which are said not forfei­tures till presentment.

SEC. LVIII.

ANd such are those offences, which by common presumption, the Lord cannot of himselfe, have notice of without notice given, as if a Copyholder committeth felony or treason.

So, if a Copyholder be Out-lawed, or ex­communicate, that the Lord may have the profits of his Copyhold Land, a presentment is necessary.

So, if a Copyholder goeth about in any other Court to intytle any other Lord unto his Copyhold, or if hee alieneth by Deede; these and the like ought to be presented.

If a Copyholder maketh a bargaine and sale of his Copyhold, and it is not in-rolled according to the Statute; this is no forfeiture; no more than a Feoffment without Livery, because nothing passeth.

So if a Copyholder maketh a Feoffment of all his Lands in Dale, and maketh Livery in his Charter Lands, no part of his Copy­hold-Land is thereby forfeited; but if Live­ry be made in any part of the Copyhold [Page 170] Lands; all his Copyhold Lands are for­feited.

If a Copyholder by Deede of bargaine and sale inrolled according to the Statute, doth bargaine and sell all his Lands in Dale, having both Copyhold and Freehold; his Copyhold is not thereby forfeited; for the Law will construe this to extend to his Free­hold onely, rather than by any over large construction [...] make a forfeiture in this kinde.

And if a Copyholder by Deed inrolled, bargaineth or selleth all his Copyhold Lands in Dale, or all his Lands in Dale gene­rally, having no Freehold Lands, this is a for­feiture.

Thus I have shewed you what Acts amount to a forfeiture. Now I will shew you what persons are able to forfeit.

SEC. LIX.

A Man of non sanae memoriae, an Idiot, or a Lunatique, though they be able to take a Copyhold, yet they are unable to forfeit a Copyhold, because they want common rea­son, nay common sense.

So an Infant that is under the age of foure­teene is unable to forfeit his Copyhold, be­cause he wanteth discretion, and till then hee is to be in Ward to the next of his kindred, to whom th'inheritance cannot descend, or to the Lord, or the Bayliffe of the Manor, as the Custome shall warrant.

So a feme covert by any Act she can doe of her selfe, cannot possibly forfeit her Co­pyhold, because she is not sui juris sed sub po­testate viri: but if shee doe any act which a­mounteth to a forfeiture by the consent of her husband, this is in her a forfeiture.

An Infant at the age of discretion may for­feit his Copyhold, not by offences which proceede from negligence or ignorance, but by such as proceede from contempt.

If an Infant come not in to be admitted, according to the Custome at three solemne proclamations made at three severall Courts; or if he will suffer his houses to goe to ruine, or his ground to be surrounded; these Acts savouring of negligence onely are no for­feitures.

So if an Infant Copyholder sueth a Re­plevin against the Lord, upon a distresse law­fully [Page 172] taken; or if hee alieneth by Deede, or the like; these Acts relishing of ignorance onely are no forfeitures.

But if he denieth from time to time to pay the Lord the Rent, or committeth volunta­ry waste, notwithstanding often warning gi­ven him by the Lord; these Acts proceeding from malice and contempt are forfeitures; and so if he comitteth felony or treason.

If a Guardian of a Copyholder commit­teth waste, hee shall forfeit the Wardsh [...]ppe onely, not the inheritance of the Copy­hold.

If Cestuy que use, of a Copyhold commit­teth waste, he shall not forfeit the Copy­hold.

If the husband committeth waste in Co­pyhold Lands, which he hath in the right of his wife;Co. 4. fo. 27. a. this is a forfeiture of the wives Copyhold.

But if a stranger committeth waste without the consent of the husband, this is no forfei­ture though the wife consenteth.

If a Diffeisor of a Copyhold committeth waste; this is no forfeiture.

So, if a Copyhold be surrendred to the use of I. S. and before admittance, I. S. commit­teth waste; this is no forfeiture, for by the same reason that hee cannot grant before ad­mittance, hee cannot forfeit before admit­tance.

If two joynt Tenants be of a Copyhold, and one committeth waste, he forfeiteth his part onely, for no man can forfeit more than he hath granted.

And therefore if there be Tenant for life with a remainder over of a Copyhold, and the Copyholder for life purchaseth the Manor, committeth waste, or doth any Act, which amounteth to the extinguishment, or the forfeiture of a Copyhold, yet the remain­der is not hereby touched.

And so if a Copyholder be granted to three habend. successivie, whereby the Cu­stome of the Manor, this word Successivie taketh place, the first Copyholder cannot prejudice the other two by any Act: he can doe no more, than if a Copyholder in Fee by Licence, maketh a Lease for yeares by Deed, or without Licence by Copy, and either of these Lessees committeth waste, the reversi­on is not hereby forfeited.

If I have two severall Copyholds, by two severall Copies, and I commit waste in one, this is a forfeiture of this one onely, and not of the other.

And so if I grant these severall Copyholds by one Copy, yet they continue severall as they did before, and the forfeiture of the one is not the forfeiture of the other.

The same Law is, if two severall Copy­holds Escheated to the Lord, and hee regran­teth them againe by one Copy.

And thus have I shewed what persons are able to forfeit. I will now in a word shew what persons are able to take benefit of a forfeiture.

SEC. LX.

REgularly it is true, that none can take be­nefit of a forfeiture; but he that is Lord of the Manor at the time of the forfeiture.

And therefore if a Copyholder maketh a Feoffment, and then the Lord alieneth, nei­ther the Granter, nor the Grantee can take benefit of this forfeiture, for neither a right [Page 175] of entry, nor a right of action can ever be transferred from one to another. And there­fore if a Freeholder alieneth in Mortmaine, and then the Lord granteth away his Seig­niory, neither the one nor the other can ever take benefit of this forfeiture.

So if a Lessee for life committeth waste, and then the Lessor granteth away the rever­sion, this waste is made dispunishable.

But if Tenant for life be of a Manor, with remainder over in Fee to a stranger,

If a Copyholder committeth waste, and then Tenant for life of the Manor dieth be­fore entry; yet he in Remainder may enter, for he had an interest in the Manor at the time of the forfeiture committed, though hee could not enter, by reason of the State in Tenant for life, which being determined, his entry is now accrued unto him for the forfei­ture committed in the life of Tenant for life.

And sometimes, he that is neither Lord of the Manor, at the time of the forfeiture com­mitted, nor ever after shall take benefite of a forfeiture.

As if a Lord of a Manor granteth a Co­pyhold in Fee, and then granteth the Franck-Tenement, or the inheritance of this Copy­hold to a stranger; the Grantee, though no Lord of the Manor, nor able to keepe any Court,Co. 4. fo. 24. shall take benefite of forfeitures made by the Copyholder, as if the Copyholder do make a Feoffment, Lease, waste, deny the Rent, &c.

Thus have I shewed what persons are able to take benefit of a forfeiture. I will now in one word shew what Acts amount to a confirmation of an estate forfeited.

SEC. LXI.

IF the Lord doth any thing whereby hee doth acknowledge him his Tenant after forfeiture; this acknowledgement amoun­teth to a Confirmation; as if he distreyneth upon the ground for Rent due after forfei­ture; or if he admitteth after the forfeiture, or the like: these are estoppells to the Lord, so that he can never enter, so the Lord have notice of such forfeitures before any such act, which may amount to a confirmation be done, yet some make this difference, that these forfeitures onely which destroy not the [Page 177] Copyhold are onely conformable by subse­quent acknowledgement, and not those for­feitures which tend to the destructions of a Copyhold, as if the Copyholder maketh a Feoffment; by this the Copyholder is de­stroyed, and therefore no subsequent ac­knowledgement of the Lord will ever salve this sore.

And this shall suffice for forfeitures. I come now in the last place, to shew what Acts a­mount to the extinguishment of a Copy­hold.

SEC. LXII.

VVHeresoever a Copyhold is become not demisable by Copy, either by the Act of the Lord, by the Act of the Law, or by the Act of the Copyholder himselfe, it is extinguished for ever.

By the Act of the Lord, as if a Copyhol­der Escheateth, and the Lord granteth away any estate by Deede, this is an extinguish­ment.Co. 4. fo. 31. So if hee maketh a Feoffment upon Condition, and then entereth for breach of the Condition: yet the Copyhold is extin­guished, because once not demisable.

But if the Lord keepeth the Copyhold-Lands, for never so many yeares, or gran­teth at will, this destroyes not the Copyhold, because it continueth ever demisable by Copy.

By the Act of the Law, as if the Copyhold escheated be extended upon a Statute or Recognizance acknowledged by the Lord, or if the feme of the Lord hath this Land as­signed unto her for her Dower, although these impediments be by the Act of the Law: yet because they are lawfull, the Land can never after be granted by Copy.

By the Act of the Copyholder himselfe, as if he accepteth a Lease for yeares at the Common Law, either mediate or immedi­ate from the Lord; of the Copyhold, this is an absolute extinguishment.

But if he accepteth a Lease for yeares of the Manor, the Copyholder by this hath not continuance, but this is no extinguishment, because the Land continueth still grantable by Copy.

If a Copyholder with Licence make a Lease for yeares to a stranger; or without [Page 179] Licence, maketh a Lease for yeares to the Lord, the Copyhold is not hereby extinguish­ed, and yet it is not demisable by Copy.

So if a Copyholder intermarrieth with a feme Seignioresse; this is a suspension onely of the Copyhold, no extinguishment.

So if the interruption be torcious, as the Lord be disseised, and this disseisor dieth seised, or if the Land be recovered by false verdict, or erronious judgement; and after the Land is recontinued, it is not extinguished, but may be granted arere by Copy; for Non valet impedimentum quod de jure non sortitur effectum, & quod con­tra legem fit pro infecto habetur.

And so I conclude with Copyholders, wishing that these may ever be a perfect union betwixt them and their Lords, that they may have a feeling of each others wrongs and injuries; that their so little Common-wealth, having all his members knit together, in compleate order, may flourish to the end.

FINIS.

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