The Works of Lord Bacon

handleth the moneys, and three clerks, that be em- | ing that they be entered into another book, especially ployed severally, as anon you shall perceive; and by these persons the whole proceeding in this charge is thus performed.

Proceeding upon fines.

If the recognition or acknowledgment of a final concord upon any writ of covenant finable, for so we call that which containeth lands above the yearly value of forty shillings, and all others we term unfinable, be taken by justice of assize, or by the chief justice of the common pleas, and the yearly value of those lands be also declared by affidavit made before the same justice; then is the recognition and value, signed with the hand-writing of that justice, carried by the cursitor in chancery for that shire where those lands do lie, and by him is a writ of covenant thereupon drawn and engrossed in parchment; which, having the same value indorsed on the backside thereof, is brought, together with the said paper that doth warrant it, into this office and there first the doctor, conferring together the paper and writ, indorseth his name upon that writ, close underneath the value thereof: then forasmuch as the valuation thereof is already made, that writ is delivered to the receiver, who taketh the sum of money that is due, after the rate of that yearly value, and indorseth the payment thereof upon the same writ accordingly: this done, the same writ is brought to the second clerk, who entereth it into a several book, kept only for final writs of covenant, together with the yearly value, and the rate of the money paid, with the name of the party that made the affidavit, and of the justice that took it; and at the foot of that writ maketh a secret mark of his said entry; lastly, that writ is delivered to the deputies, who seeing that all the premises be orderly performed, do also indorse their own names upon the same writ for testimony of the money received. Thus passeth it from this office to the custos brevium, from him to the queen's silver, then to the chirographer to be engrossed, and so to be proclaimed in the court. But if no affidavit be already made touching the value, then is the writ of covenant brought first to the deputies ready drawn and engrossed and then is the value made either by composition had with them without any oath, or else by oath taken before the doctor; if by composition, then one of the deputies setteth down the yearly value, so agreed upon, at the foot of the backside of the writ; which value the doctor causeth one of the clerks to write on the top of the backside of the writ, as the cursitor did in the former, and after that the doctor indorseth his own name underneath it, and so passeth it through the hands of the receiver, of the clerk that maketh the entry, and of the deputies, as the former writ did. But if the valuation be made by oath taken before the doctor, then causeth he the clerk to indorse that value accordingly, and then also subscribeth he his name as before; and so the writ taketh the same course through the office that the others had. Proceeding upon writs of

And this is the order for writs of covenant that be finable: the like whereof was at the first observed, in passing of writs of entry of lands holden in chief: sav

entry.

appointed for them and for licences and pardons of alienations; and the like is now severally done with the writs of entry of lands not so holden: which writs of covenant or entry not finable, thus it is done: an affidavit is made either before some such justice, or before the said doctor, that the lands, comprised in the writ, be not worth above forty shillings by the year, to be taken. And albeit now here can be no composition, since the queen is to have no fine at all for unfinable writs, yet doth the doctor indorse his name, and cause the youngest, or third clerk, both to make entry of the writ into a third book, purposely kept for those only writs, and also to indorse it thus, " finis nullus:" That done, it receiveth the names of the deputies, indorsed as before, and so passeth hence to the custos brevium as the rest. Upon every doquet for licence of alienation, or warrant for pardon of alienation, the party is likewise at liberty either to compound with the deputies, or to make affidavit touching the yearly value; which being known once and set down, the doctor describeth his name, the receiver taketh the money after the due rate and proportion; the second clerk entereth the doquet or warrant into the book that is proper for them, and for the writs of entry, with a notice also, whether it passeth by oath or by composition: then do the deputies sign it with their hands, and so it is conveyed to the deputy of Mr. Bacon, clerk of the licences, whose charge it is to procure the land of the lord chancellor, and consequently the great seal for every such licence or pardon.

There yet remaineth untouched, the Proceeding order that is for the mean profits; for upon forfeiture of mean profits. also there is an agreement made here when it is discovered that any alienation hath been made of lands holden in chief, without the queen's licence; and albeit that in the other cases, one whole year's profit be commonly payable upon such a pardon, yet where the alienation is made by devise in a last will only, the third part of these profits is there demandable, by special provision thereof made in the statute 34 H. VIII. c. 5. but yet every way the yearly profits of the 34 H. VIII. lands so aliened without licence, and lost even from the time of the writ of scire facias, or inquisition thereupon returned into the exchequer, until the time that the party shall come hither to sue forth his charter of pardon for that offence.

c. 5.

In which part the subject hath in time gained double ease of two weighty burdens, that in former ages did grievously press him: the one before the institution of this office, and the other sithence : for in ancient time, and of right, as it is judged 46 E. III. Fitzh. forfait 18, the mean profits were precisely answered after the rate and proportion per diem, even from the time of the alienation made. Again, whereas before the receipt of them in this office, they were assessed by the affidavit from the time of the inquisition found, or scire facias returned now not so much at any time as the one half, and many times not the sixth part of them is exacted. Here therefore, above the rest, is great necessity to

The chief

clerk.

show favour and merciful dealing: because it many
times happeneth, that either through the remote
dwelling of the party from the lands, or by the neg-
ligence or evil practice of under-sheriffs and their
bailiffs, the owner hath incurred the forfeiture of
eight or ten years' whole profits of his lands, before
he cometh to the knowledge of the process that run-
neth against him: other times an alienation made
without licence is discovered when the present owner
of the lands is altogether ignorant that his lands be
holden in chief at all: other times also some man
concludeth himself to have such a tenure by his own
suing forth of a special writ of livery, or by causeless
procuring a licence, or pardon, for his alienation,
when in truth the lands be not either holden at all
of her Majesty, or not holden in chief, but by a
mean tenure in socage, or by knight's service at the
most. In which cases, and the like, if the extre-
mity should be rigorously urged and taken, espe-
cially where the years be many, the party should be
driven to his utter overthrow, to make half a
purchase, or more, of his own proper land and living.
About the discovery of the tenure in
chief, following of process for such
alienation made, as also about the call-
ing upon sheriffs for their accounts, and the bring-
ing in of the parties by seisure of their lands, there-
fore the first and principal clerk in this office, of
whom I had not before any cause to speak, is chiefly
and in a manner wholly occupied and set on work.
Now if it do at any time happen, as,
The discharge
of him that notwithstanding the best endeavour, it
chief when he may and doth happen, that the process,
is sued errone- howsoever colourably awarded, hath
ously.
not hit the very mark whereat it was
directed, but haply calleth upon some man who is
not of right to be charged with the tenure in chief,
that is objected against; then is he, upon oath and
other good evidence, to receive his discharge under
the hands of the deputies, but with a quousque, and
with salvo jure domine. Usage and deceivable
manner of awarding process cannot be avoided,
especially where a man, having in some one place
both lands holden in chief, and other lands not so
holden, alieneth the lands not holden: seeing that
it cannot appear by record nor otherwise, without
the express declaration and evidences of the party
himself, whether they be the same lands that be
holden, or others. And therefore albeit the party
grieved thereby may have some reason to complain
of an untrue charge, yet may he not well call it an
unjust vexation; but ought rather to look upon that
ease, which in this kind of proceeding he hath
found, where, besides his labour, he is not to expend
above two and twenty shillings in the whole charge,
in comparison of that toil, cost, and care, which he
in the case was wont to sustain by the writ of cer-
tiorari in the exchequer; wherein besides all his
labour, it did cost him fifty shillings at the least,
and sometimes twice so much, before he could find
the means to be delivered.

holdeth not in

Policy for avoiding corruption.

VOL. I.

able.

ticularly and at full, to the end that thereby these
things ensuing, might the more fully appear, and
plainly bewray themselves: first, that this present
manner of exercising of this office hath so many
testimonies, interchangeable warrants, and counter-
rolments, whereof each, running through the hands
and resting in the power of so many several persons,
is sufficient to argue and convince all manner of
falsehood; so as with a general conspiracy of all
those offices together, it is almost impossible to
contrive any deceit therein: a right ancient and
sound policy, whereupon both the order of the ac-
counts in the exchequer, and of the affairs of her
Majesty's own household, are so grounded and built,
that the infection of an evil mind in some one or
twain cannot do any great harm, unless the rest of
the company be also poisoned by their contagion.
And surely, as Cicero said, "Nullum est tam des-
peratum collegium, in quo non unus e multis sit
sana mente præditus." Secondly, that here is great
use both of discretion, learning, and integrity: of
discretion, I say, for examining the de-
Inequality of
grees of favour, which ought to be im- rates justifi-
parted diversly, and for discerning the
valuations of lands, not in one place or shire, but in
each county and corner of the realm; and that not
of one sort or quality, but of every kind, nature, and
degree: for a taste whereof, and to the end that all
due quality of rates be not suddenly charged with
infidelity, and condemned for corruption; it is note-
worthy, that favour is here sometimes right worthily
bestowed, not only in a general regard of the per-
son, by which every man ought to have a good
pennyworth of his own, but more especially also and
with much distinction: for a peer of The person.
the realm, a counsellor of state, a judge
of the land, an officer that laboureth in furtherance
of the tenure, or a poor person, are not, as I think,
to be measured by the common yard, but by the
pole of special grace and dispensation. Such as
served in the wars have been permitted, by many
statutes, to alien their lands of this nature, without
suing out of any licence. All those of the chancery
have claimed and taken the privilege to pass their
writs without fine; and yet therefore do still look to
be easily fined: yea the favourites in court, and as
many as serve the queen in ordinary, take it un-
kindly if they have not more than market measure.

Again, the consideration of the place The place.
or county where the lands do lie, may
justly cause the rate or valuation to be the more or
less; for as the writs do commonly report the land
by numbers of acres, and as it is allowable, for the
eschewing of some dangers, that those numbers do
exceed the very content and true quantity of the
lands themselves; so in some counties they are not
much acquainted with admeasurement by acre: and
thereby, for the most part, the writs of those shires
and counties do contain twice or thrice so many
acres more than the land hath. In some places the
lands do lie open in common fields, and be not so
Thus have I run through the whole valuable as if they were enclosed: and not only in
order of this practice, in the open time one and the same shire, but also within the self-
of the term; and that the more par- same lordship, parish, or hamlet, lands have their

divers degrees of value, through the diversity of their fertility or barrenness: wherein how great odds and variety there is, he shall soonest find, that will examine it by his own skill in whatsoever place that he knoweth best.

Moreover, some lands be more chargeable than others are, respecting either the tenure, as knight's service, and the tenure in chief, or in regard of defence against the sea and great rivers; as for their lying near to the borders of the realm, or because of great and continual purveyances that are made upon them, or such like.

And in some counties, as namely westward, their yearly rents, by which most commonly their value to her Majesty is accounted, are not to this day improved at all, the landlords making no less gain by fines and incomes, than there is raised in other places by enhancement of rents.

The manner of the assurance.

The manner and sorts of the conveyance of the land itself is likewise variable, and therefore deserveth a diverse consideration and value: for in a pardon one whole year's value, together with the mean rates thereof, is due to be paid; which ought therefore to be more favourably assessed, than where but a third part of one year's rent, as in a licence or writ of entry, or where only a tenth part, as in a writ of covenant, is to be demanded.

A licence also and a pardon are to pass the charges of the great seal, to the which the bargain and sale, the fine and recovery are not subject. Sometimes upon one only alienation and change, the purchaser is to pass both licence, fine, and recovery, and is for this multiplicity of payments more to be favoured, than he which bringeth but one single pay for all his assurance.

Moreover, it is very often seen that the same land suffereth sundry transmutations of owners within one term, or other small compass of time; by which return much profit cometh to her Majesty, though the party feel of some favour in that doing.

The end of

Neither is it of small moment in this conveyances. part, to behold to what end the conveyances of land be delivered: seeing that sometimes it is only to establish the lands in the hands of the owner and his posterity, without any alienation and change of possession to be made: sometimes a fine is levied only to make good a lease for years, or to pass an estate for life, upon which no yearly rent is reserved; or to grant a reversion, or remainder, expectant upon a lease, or estate, that yieldeth no rent. Sometimes the land is given in mortgage only, with full intention to be redeemed within one year, six months, or a lesser time. Many assurances do also pass to godly and charitable uses alone; and it happeneth not seldom, that, to avoid the yearly oath, for averment of the continuance of some estate for life, which is eigne, and not subject to forfeiture, for the alienation that cometh after it, the party will offer to sue a pardon uncompelled before the time; in all which some mitigation of the uttermost value may well and worthily be offered, the rather for that the statute, 1 E. III. cap. 12, willeth,

1 E. III. c. 12.

that in this service generally a reasonable fine shall be taken.

Error and mistaking.

Lastly, error, misclaim, and forgetfulness, do now and then become suitors for some remission of extreme rigour: for I have sundry times observed, that an assurance, being passed through for a competent fine, hath come back again by reason of some oversight, and the party hath voluntarily repassed it within a while after. Sometimes the attorney, or follower of the cause, unskilfully thrusteth into the writ, both the uttermost quantity or more of the land, and the full rent also that is given for it: or else setteth down an entierty, where but a moiety, a third, or fourth part only was to be passed; or causeth a bargain and sale to be enrolled, when nothing passed thereby, because a fine had transferred the land before; or else enrolleth it within the six months; whereas, before the end of those months, the land was brought home to the first owner, by repayment of the money for which it was engaged. In which and many other like cases, the client will rather choose to give a moderate fine for the alienation so recharged, than to undertake a costly plea in the exchequer, for reformation of that which was done amiss. I take it for a venial fault also to vouchsafe a pardon, after the rate and proportion of a licence, to him that without fraud or evil mind hath slipped a term or two months, by forgetting to purchase his licence.

Much more could I say concerning this unblamable inequality of fines and rates: but as I meant only to give an essay thereof, so not doubting but that this may stand, both for the satisfaction of such as be indifferent, and for the discharge of us that be put in trust with the service, wherein no doubt a good discretion and dexterity ought to be used, I resort to the place where I left, affirming that there is in this employment of ours great use of good learning also, as well to distinguish the manifold sorts of tenures and estates; to make construction of grants, conveyances, and wills, and to sound the validity of inquisitions, liveries, licences, and pardons as also to decipher the manifold slights and subtleties that are daily offered to defraud her Majesty in this her most ancient and due prerogative, and finally to handle many other matters, which this purpose will not permit me to recount at large.

Lastly, here is need, as I said, of integrity throughout the whole labour and practice, as without the which both the former learning and discretion are no better than armata nequitia, and nothing else but detestable craft and double villany.

And now as you have seen that these clerks want not their full task of labour during the time of the open term, so is there for them whereupon to be occupied in the vacation also.

For whereas alienations of lands, holden by the tenure of prerogative, be continually made, and that by many and divers ways, whereof all are not, at the first, to be found of record; and yet for the most part do come to be recorded in the end: the clerks of this office do, in the time of the vacation, repair to the rolls and records, as well of the chancery and king's bench, as of the common pleas and exchequer,

whence they extract notes not only of inquisitions, | must add, that during all the time of the demise, he common recoveries, and indentures of bargains and answered 300l. rent, of yearly increase, above all sales, that cannot but be of record, but also of such that profit of 2133l. 2s. 7d. qu. which had been feoffments, exchanges, gifts by will, and indentures yearly and casually made in the sixteen years one of covenants to raise uses of lands holden in chief, with another next before the which, in the term as are first made in the country without matter of of fourteen years, for so long these profits have been record, and come at the length to be found by office demised by three several leases, did bring 4200l. to or inquisition, that is of record; all which are her Majesty's coffers. I say yearly; which may digested into apt books, and are then sent to the seem strange, that a casual and thereby uncertain remembrancer of the lord treasurer in the exchequer, profit should yearly be all one: but indeed such was to the end that he may make and send out processes the wondrous handling thereof, that the profit was upon them, as he doth upon the extracts of the yearly neither more nor less to her Majesty, howfinal concords of such lands, which the clerk of the soever it might casually be more or less to him that fines doth convey unto him. did receive it. For the writs of covenant answered year by year 1152/. 16s. 8d. the licences and pardons 9341. 3s. 11d. qu. and the mean rates 46/. 2s. in all 21337. 2s. 7d. qu. without increase or diminution.

Thus it is plain, that this new order by many degrees excelleth the former usage; as also for the present advancement of her Majesty's commodity, and for the future profit which must ensue by such discovery of tenures as were concealed before, by awaking of such as had taken a long sleep, and by reviving a great many that were more than half dead. The fees or allowances, that are termly given to these deputies, receiver, and clerks, for recompence of these their pains, I do purposely pretermit; because they be not certain but arbitrary, at the good pleasure of those honourable persons that have the dispensation of the same howbeit hitherto each deputy and the receiver hath received twenty pounds for his travail in each term, only the doctor hath not allowance of any sum in gross, but is altogether paid in petty fees, by the party or suitor; and the clerks are partly rewarded by that mean also, for their entries, discharges, and some other writings, besides that termly fee which they are allowed.

Note.

But if the deputies take one penny, besides their known allowance, they buy it at the dearest price that may be; I mean the shipwreck of conscience, and with the irrecoverable loss of their honesty and credit; and therefore since it appeareth which way each of these hath his reward, let us also examine that increase of benefit and gain, which is brought to her Majesty by the invention of this office.

At the end of Hilary term 1589, being the last open term of the lease of these profits granted to the late earl of Leicester, which also was to expire at the feast of the Annunciation of the blessed Virgin Mary 1590, then shortly to ensue; the officers above remembered thought it, for good causes, their duties to exhibit to the said right honourable the lord treasurer a special declaration of the yearly profits of these finances, paid into the hanaper during every of the six years before the beginning of the demise thereof made to that earl, conferred with the profits thereof that had been yearly taken during the six last years before the determination of the lease. By which it plainly appeared, that in all those first six years, next before the demise, there had been raised only 127987. 15s. 7d. ob. and in❘ these last six years of the demise the full sum of 32160l. 4s. 10d. qu. and so in all 193627. 2s. 2d. ob. qu. more in these last, than in those former six years. But because it may be said, that all this increase redounded to the gain of the fermour only, I

Moreover, whereas her Majesty did, after the death of the earl, buy of the countess, being his executrix, the remanent of the last term of three years in those profits, whereof there were only then six terms, that is, about one year and a half, to come, paying for it the sum of 3000l. her Majesty did clearly gain by that bargain the full sum of 1173l. 15s. 8d. ob. above the said 3000l. above the rent of 3649/. 13s. 10d. ob. qu. proportionably due for that time, and above all fees and other reprises. Neither hath the benefit of this increase to her Majesty been contained within the bounds of this small office, but hath swelled over the banks thereof, and displayed itself apparently, as well in the hanaper, by the fees of the great seal, which yielding 20s. 4d. towards her Majesty for every licence and pardon, was estimated to advantage her highness during those fourteen years, the sum of 37217. 6s. ob. qu. more than without that demise she was like to have found. As also in the court of wards and liveries, and in the exchequer itself: where, by reason of the tenures in chief revived through the only labours of these officers, both the sums for respect of homage be increased, and the profits of wardships, primer seisins, ouster le maine, and liveries, cannot but be much advanced. And so her Majesty's self hath, in this particular, gained the full sum of 8736l. 5s. 5d. ob. qu. not comprising those profits in the exchequer and court of wards, the very certainty whereof lieth not in the knowledge of these officers, nor accounting any part of that great benefit which the earl and his executrix have made by the demises: which one year with another, during all the thirteen years and a half, I suppose to have been 2263/. or thereabouts; and so in all about 271587. above all his costs and expenses. The which albeit I do here report only for the justification of the service in this place; yet who cannot but see withal, how much the royal revenues might be advanced, if but the like good endeavours were showed for her Majesty in the rest of her finances, as have been found in this office for the commodity of this one subject?

The views of all which matter being presented to the most wise and princely consideration of her Majesty, she was pleased to demise these profits and fines for other five years, to begin at the feast

596

AN HISTORICAL ACCOUNT OF THE OFFICE OF ALIENATIONS.

of the Annunciation 1590, in the thirty-second year | first, that by the diligence of these officers, assisted

of her reign, for the yearly rent formerly reserved upon the leases of the earl; within the compass of which five years, expired at the Annunciation 1595, there was advanced to her Majesty's benefit, by this service, the whole sum of 130137. 14s. Id. qu. beyond the ancient yearly revenues, whicn, before any lease, were usually made of these finances. To which if there be added 57001. for the gain given to her Majesty by the yearly receipt of 300l. in rent, from the first demise to the earl, until the time of his death, together with the sum of 11737. 15s. 8d. ob. clearly won in those six terms bought of the countess; then the whole commodity, from the first institution of this office, till the end of these last five | years expired at the Annunciation 1595, shall appear to be 198871. 9s. 9d. ob. qu. To the which sum also if 28550l. 15s. 6d. ob. qu. which the earl❘ and the countess levied hereby, be likewise adjoined, then the whole profit taken in these nineteen years, that is, from the first lease to the end of the last, for her Majesty, the earl, and the countess, will amount unto 484381. 5s. 4d. This labour hitherto thus luckily succeeding, the deputies in this office finding by daily proof, that it was wearisome to the subject to travel to divers places, and through sundry hands, for the pursuing of common recoveries, either not holden of her Majesty at all, or but partly holden in chief; and not doubting to improve her Majesty's revenue therein, and that without loss to any, either private person or public officer, if the same might be managed by them jointly with the rest whereof they had the charge; they found, by search in the hanaper, that the fruits of those writs of entry had not, one year with another, in the ten❘ years next before, exceeded 4001. by the year. Whereupon they took hold of the occasion then present, for the renewing of the lease of the former profits; and moved the lord treasurer, and Sir John Fortescue, under-treasurer and chancellor of the exchequer, to join the same in one and the same demise, and to yield unto her Majesty 5001. by year therefor; which is 1007. yearly of increase. The which desire being by them recommended to her Majesty, it liked her forthwith to include the same, and all the former demised profits, within one entire lease, for seven years, to begin at the said feast of the Annunciation 1597, under the yearly rent of 29331. 2s. 7d. qu. Since which time hitherto, I mean to the end of Michaelmas term 1598, not only the proportion of the said increased 100%. but almost of one other 1001. also, hath been answered to her Majesty's coffers, for those recoveries so drawn into the demise now continuing.

with such other as can bring good help thereunto, a general and careful collection be made of all the tenures in chief: and that the same be digested by way of alphabet into apt volumes, for every part, or shire, of the realm. Then that every office, or inquisition, that findeth any tenure in chief, shall express the true quantities of the lands so holden, even as in ancient time it was wont to be done by way of admeasurement, after the manner of a perfect extent or survey; whereby all the parts of the tenancy in chief may be wholly brought to light, howsoever in process of time it hath been, or shall be torn and dismembered. For prevention, I wish likewise, first, that some good means were devised for the restraint of making these inordinate and covenous leases of lands, holden in chief, for hundreds or thousands of years, now grown so bold, that they dare show themselves in fines, levied upon the open stage of the common pleas; by which one man taketh the full profit, and another beareth the empty name of tenancy, to the infinite deceit of her Majesty in this part of her prerogative. Then, that no alienation of lands holden in chief should be available, touching the freehold or inheritance thereof, but only where it were made by matter of record, to be found in some of her Majesty's treasuries; and lastly, that a continual and watchful eye be had, as well upon these new-founden traverses of tenure, which are not now tried per patriam, as the old manner was; as also upon all such pleas whereunto the confession of her Majesty's said attorney-general is expected: so as the tenure of the prerogative be not prejudiced, either by the fraud of counsellors at the law, many of which do bend their wits to the overthrow thereof; or by the greediness of clerks and attorneys, that, to serve their own gain, do both impair the tenure, and therewithal grow more heavy to the client, in so costly pleading for discharge, than the very confession of the matter itself would prove unto him. I may yet hereunto add another thing, very meet not only to be prevented with all speed, but also to be punished with great severity: I mean that collusion set on foot lately, between some of her Majesty's tenants in chief, and certain others that have had to do in her highness's grants of concealed lands: where, under a feigned concealment of the land itself, nothing else is sought but only to make a change of the tenure, which is reserved upon the grant of those concealments, into that tenure in chief: in which practice there is no less abuse of her Majesty's great bounty, than loss and hinderance of her royal right. These things thus settled, the tenure in chief should be kept alive and nourished; the which, as it is the very root that doth maintain this silver stem, that by many rich and fruitful branches spreadeth itself into the chancery, exchequer, and court of ward; so, if it be suffered to starve, by want of ablaqueation, and other good husbandry, not only this yearly fruit will much decrease from time to time, but also the whole body and boughs of that precious tree itself will fall into danger of decay and dying.

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The Works of Lord Bacon: With an Introductory Essay, Volume 1