of the diocess might, if he would, claim him as a clerk, and he was to see him tried in the face of the court whether he could read or not. The book was prepared and brought by the bishop, and the judge was to turn to some place as he should think meet; and if the prisoner could read, then the bishop was to have him delivered over unto him, to dispose of in some places of the clergy as he should think meet: but if either the bishop would not demand him, or that the prisoner could not read, then was he to be put to death. Clergy allow all offences, except treason churches; now taken away, 1. In murder. 2. In burglary. 3. Robbery. 4. Purse-cut ting. 5. Horsestealing, and in divers other And this clergy was allowable, in the ed anciently in ancient times and law, for all offences, whatsoever they were, except treason, and robbing of and the robbing of churches of their goods and ornaments. But by many statutes made since, the clergy is taken away for murder, burglary, robbery, purse-cutting, horse-stealing, and divers other felonies particularized by the statutes to the judges; and lastly, by a statute made 18 Elizabeth, the judges themselves are appointed to allow clergy to such as can read, being not such offenders from whom clergy is taken away by any statute, and to see them burned in the hand, and so discharge them, without delivering them to the bishop; howbeit, the bishop appointeth the deputy to attend the judges with a book to try whether they can read or not. offences. By see them burn ed in the hand, and to dis charge the pri soners without delivering them to the bishop. The third commission that the judges of circuits have, is a commission directed to themselves only, and the clerk of assize, to take assizes, by which | they are called justices of assize; and the office of those justices is to do right upon writs called assizes, brought before them by such as are wrongfully thrust out of their lands. Of which number of writs there was far greater store brought before them in ancient times than now; for that men's seisins and possessions are sooner recovered by sealing leases upon the ground, and by bringing an ejectione firma, and trying their title so, than by the long suits of assizes. 4. Commission to take Nisi prius, directed to two judges, and the clerk of the assize. Nisi Prius. The fourth commission is a commission to take Nisi prius, directed to none but to the judges themselves, and their clerks of assizes, by which they are called justices of Nisi prius. These Nisi prius happen in this sort; when a suit is begun for any matter in one of the three courts, the king's bench, common pleas, or the exchequer here above, and the parties in their pleadings do vary in a point of fact; as for example, if in an action of debt upon obligation the defendant denies the obligation to be his debt; or in any action of trespass grown for taking away goods, the defendant denieth that he took them; or in action of the case for slanderous words, the defendant denieth that he spake them, &c. Then the plaintiff is to maintain and prove that the obligation is the defendant's deed, that he either took the goods or spake the words: upon which denial and affirmation the law saith, that issue is joined betwixt them, which issue of the fact is to be tried by a jury of twelve men of the county, where it is supposed by the plaintiff to be done, and for that purpose the judges of the court do award a writ of Venire facias in the king's name to the sheriff of that county, commanding him to cause four and twenty discreet freeholders of his county, at a certain day, to try this issue so joined; out of which four and twenty only twelve are chosen to serve. And that double number is returned, because some may make default, and some be challenged upon kindred, alliance, or partial dealing. Distringas. The manner of justices of of proceeding circuits. The judges hold in the taking of Nisi prius. course the These four and twenty the sheriff doth name and certify to the court, and withal, that he hath warned them to come at the day according to their writ. But because at the first summons there falleth no punishment upon the four and twenty if they come not, they very seldom or never appear upon the first writ; and upon their default there is another writ returned to the sheriff, commanding him to distrain them by their lands to appear at a certain day appointed by the writ, which is the next term after, "Nisi prius justiciarii nostri ad assisas capiendas venerint," etc. of which words the writ is called a | Nisi prius, and the judges of the circuit of that county in that vacation, and mean time, before the day of appearance appointed for the jury above, here by their commission of Nisi prius have authority to take the appearance of the jury in the county before them, and there to hear the witnesses and proofs on both sides, concerning the issue of the fact, and to take the verdict of the jury, and against the day they should have appeared above, to return the verdict read in the court above, which return is called a Postea. Postea. And upon this verdict clearing the matter in fact, one way or other, the judges above give judgment for the party for whom the verdict is found, and for such damages and costs as the jury do assess. By those trials called "Nisi prius," the juries and the parties are eased much of the charge they should be put to, by coming to London with their evidences and witnesses; and the courts of Westminster are eased of much trouble they should have, if all the juries for trials should appear and try their causes in those courts; for those courts above have little leisure now. Though the juries come not up, yet in matters of great weight, or where the title is intricate or difficult, the judges above, upon information to them, do retain those causes to be tried there, and the juries do at this day, in such cases, come to the bar at Westminster. to attend in person, or by a sufficient deputy allowed by the judges, all that time they be within the county, and the judges may fine him if he fail, or for negligence or misbehaviour in his office before them, the judges above may also fine the sheriff, for not returning, or not sufficient returning of writs before them. Property in lands, how gotten or transferred. II. By descent. III. By escheat. IV. Most usually by conveyance. Of the property of lands to be gained by entry. All lands in England were the Conquer or's, and held of him, except, 1. Religious and church lands. 2. The lands Kent. Land left by I. Property by entry is, where a man findeth a piece of land that no other possesseth, or hath title unto, and he that so findeth it doth enter, this entry gaineth a property. This law seemeth to be derived from this text, "Terram dedit filiis hominum," which is to be understood, to those that will till and manure it, and so make it yield fruit: and that is he that entereth into it, where no man had it before. But this manner of gaining lands was in the first days, and is not now of use in England, for that by the Conquest all the land of this nation was in the Conqueror's hands, and appropriated unto him; except of the men of religious and church lands, and the lands in Kent, which by composition were left to the former owners, as the Conqueror found them; so that none but the bishoprics, churches, and the men of Kent, can at this day make any greater title than from the Conquest, to any lands in England. And lands possessed without any such title, are in the crown, and not in him that first entereth; as it is in land left the sea belong by the sea; this land belongeth to the eth to the king. king, and not to him that hath the lands next adjoining, which was the ancient sea banks. This is to be understood of the inheritance of lands, namely, that the inheritance cannot be gained by the first entry. But an estate for another man's life by occupancy, may at this day be gotten by entry. As a man called A. having land conveyed unto him for the life of B. dieth without making any estate of it, there, whosoever first entereth into the land after the decease of A. getteth the property in the land for time of the continuance of the estate which was granted to A. for the life of B. which B. yet liveth, and therefore the said land cannot revert till B. die. And to the heir of A. it cannot go, for that it is not any estate of inheritance, but only an estate for another man's life; which is not descendable to the heir, except he be specially named in the grant, namely, to him and his heirs. As for the executors of A. they cannot have it, for it is not an estate testamentary, that it should go to the executors as goods and chattels should, so as in truth no man can entitle himself unto those lands; and therefore the law preferreth him that first entereth, and he is called occupans, and shall Occupancy. hold it during the life of B. but must pay the rent, perform the conditions, and do no waste: and he may by deed assign it to whom he please in his life-time. But if he die before he assign it over, then it shall go again to whomsoever first entereth and holdeth; and so all the life of B. so often as it shall happen. Likewise, if any man doth wrongfully enter into another man's possession, and put the right owner of the freehold and inheritance from it, he thereby getteth the freehold and inheritance by disseisin, and may hold it against all men, but him that hath right, and his heirs, and is called a disseisor. Or if any one die seised of lands, and before his heir doth enter, one that hath no right doth enter into the lands, and holdeth them from the right heir, he is called an abator, and is lawful owner against all men but the right heir. And if such person abator or disseisor, so as the disseisor hath quiet possession five years next after the disseisin, do continue their possession, and die seised, and the land descend to his heir, they have gained the right to the possession of the land against him that hath right, till he recover it by fit action real at the common law. And if it be not sued for at the common law, within threescore years after the disseisin, or abatement committed, the right owner hath lost his right by that negligence. And if a man hath divers children, and the elder, being a bastard, doth enter into the land, and enjoyeth it quietly during his life, and dieth thereof so seised, his heirs shall hold the land against all the lawful children, and their issues. scent II. Property of lands by descent is, Property of where a man hath lands of inheritance lands by deand dieth, not disposing of them, but leaving it to go, as the law casteth it, upon the heir. This is called a descent in law, and upon whom the descent is to light, is the question. For which purpose, the law of inheritance preferreth the first child before all others, and amongst children the male before the female; and amongst males the first born. If there be no children, then the brother; if no brother, then sisters; if neither brothers nor sisters, then uncles, and for lack of uncles, aunts; if none of them, then cousins in the nearest degree of consanguinity, with these three rules of diversities. 1. That the eldest male shall solely inherit; but if it come of descent: to females, then they being all in an equal degree of nearness shall inherit all together, and are called parceners, and all they make but one heir to the ancestor. 2. That no Brother or sis three rules. ter of the half blood shall not inherit to his brother or sister, but only as a child to his parents. brother or sister of the half blood shall inherit to his brother or sister, but as a child to his parents: as for example, if a man have two wives, and by either wife a son, the eldest son over-living his father, is to be preferred to the inheritance of the father, being fee-simple: but if he entereth and | dieth without a child, the brother shall not be his heir, because he is of the half blood to him, but the uncle of the eldest brother or sister of the whole blood: yet if the eldest brother had died, or had Descent. court when he is sued, that is, if he Heir charged for his false plea. not entered in the life of the father, either by such | debt of his ancestor do not deal clearly with the entry or conveyance, then the youngest brother should inherit the land that the father had, although it were a child by the second wife, before any daughter by the first. The third rule about descents: The land purchased so by the party himself that dieth, is to be inherited; first, by the heirs of the father's side; then, if he have none of that part, by the heirs of the mother's side. But lands descended to him from his father | or mother, are to go to that side only from which they came, and not to the other side. Customs of certain places. : Those rules of descent mentioned before are to be understood of fee-simples, and not of entailed lands; and those rules are restrained by some particular customs of some particular places as namely, the customs of Kent, that every male of equal degree of childhood, brotherhood, or kindred, shall inherit equally, as daughters shall, being parceners; and in many borough towns of England, the custom alloweth the youngest son to inherit, and so the youngest daughter. The custom of Kent is called, Gavelkind. The custom of boroughs, Burgh-English. And there is another note to be observed in feesimple inheritance, and that is, that every heir having fee-simple land or inheritance, be it by common law or by custom, of either Gavelkind or BurghEnglish, is chargeable, so far forth as the value thereof extendeth, with the binding acts of the ancestors from whom the inheritance descendeth: and these acts are collateral encumbrances, and the reason of this charge is, " Qui sentit commodum, Every heir having land is bound by the binding acts of his ances tors, if he be named. Dyer, 114. Plowd. sentire debet et incommodum sive onus." As for example, if a man bind himself and his heirs in an obligation, or do covenant by writing for him and his heirs, or do grant an annuity for him and his heirs, or do make a warranty of land, binding him and his heirs to warranty in all these cases the law chargeth the heir after the death of the ancestor with this obligation, covenant, annuity, and warranty: yet with these three cautions: first, that the party must by special name bind himself and his heirs, or covenant, grant, and warrant for himself and his heirs; otherwise the heir is not to be touched. Secondly, that some action must be brought against the heir, whilst the land or other inheritance resteth in him unaliened away for if the ancestor die, and the heir, before an action be brought against him upon those bonds, covenants, or warranties, do alien away the land, then the heir is clean discharged of the burden; except the land was by fraud conveyed away of purpose to prevent the suit intended against him. Thirdly, that no heir is farther to be charged than the value of the land descended unto him from the same ancestor that made the instrument of charge, and that land Day and also, not to be sold out-right for the Pepp's case. debt, but to be kept in extent, and at a yearly value, until the debt or damage be run out. Nevertheless, if an heir that is sued upon such a Dyer, 149. Plowd. come not in immediately, and by way Property of lands by es cheat. Two causes of es III. Property of lands by escheat, is where the owner died seised of the lands in possession without child or other heir, thereby the land, for lack of other cheat. 1. Bastardy. 2. Atheir, is said to escheat to the lord of tainder of whom it is holden. This lack of heir treason, felony. happeneth principally in two cases: First, where the land's owner is a bastard. Secondly, where he is attainted of felony or treason. For neither can a bastard have any heir, except it be his own child, nor a man attainted of treason, although it be his own child. Attainder of treason entitleth the king, though lands be not holden wise in attainder of felony, &c. for there of him: other Upon attainder of treason the king is to have the land, although he be not the lord of whom it is held, because it is a royal escheat. But for felony it is not so, for there the king is not to have the escheat, except the land be holden of him: and yet where the land is not holden of him, the king is to have the land for a year and a day next ensuing the judgment of the attainder, with a liberty to commit all manner of waste all that year in houses, gardens, ponds, lands, and woods. the king shall num, diem et have but an vastum. In escheats, 1. The tenure. 2. The mantainder. ner of the at In these escheats two things are especially to be observed; the one is, the tenure of the lands, because it directeth the person to whom the escheat belongeth, namely, the lord of the manor of whom the land is holden. 2. The manner of such attainder which draweth with it the escheat. Concerning the tenure of lands, it is to be understood, that all lands are holden of the crown either mediately or immediately, and that the escheat appertaineth to the immediate lord, and not to the mediate. The reason why all land is holden of the crown immediately, or by mesne lords, is this: The Conqueror got by right of conquest all the land of the realm into his own hands in demesne, taking from every man all estate, tenure, property, and liberty of the same, except religious rents and and church lands, and the land in Kent; and still as he gave any of it out of his own hand, he reserved some The Con queror got all the realm into the lands of his hands, services. Knight's service in capite first insti tuted. retribution of rents, or services, or both, to him and to his heirs; which reservation is that which is called the tenure of land. The reservation in knight's service. 1. Marriage of the wards. 2. Horse for service. 3. Ho mage and fealty. 4. Primer seisin. The policy of the Conquer or in the reservation of services. In which reservation he had four institutions, exceeding politic and suitable to the state of a conqueror. First, Seeing his people to be part Normans, and part Saxons, the Normans he brought with him, the Saxons he found here: he bent himself to conjoin them by marriages in amity, and for that purpose ordained, that if those of his nobles, knights, and gentlemen, to whom he gave great rewards of lands, should die, leaving their heir within age, a male within twenty-one, and a female within fourteen years, and unmarried, then the king should have the bestowing of such heirs in marriage in such a family, and to such persons as he should think meet; which interest of marriage went still implied, and doth at this day in every tenure called knight's service. the king went to war. The second was, to the end that his Reservation that his te- people should still be conserved in warnant should like exercises, and able for his defence. keep a horse of service, When therefore he gave any good porand serve tion of lands, that might make the party upon him himself when of abilities or strength, he withal reserved this service, that that party and his heirs having such lands, should keep a horse of service continually, and serve upon him himself when the king went to wars; or else, having impediment to excuse his own person, should find another to serve in his place which service of horse and man is a part of that tenure called knight's service at this day. : But if the tenant himself be an infant, the king is to hold this land himself until he come to full age, finding him meat, drink, apparel, and other necessaries, and finding a horse and a man with the overplus, to serve in the wars, as the tenant himself should do if he were at full age. But if this inheritance descend upon a woman that cannot serve by her sex, then the king is not to have the lands, she being of fourteen years of age, because she is then able to have a husband that may do the service in person. : * The third institution was, that upon 3. Institution of the Con- every gift of land the king reserved a queror was, vow and an oath to bind the party to that his tenants by his faith and loyalty that vow was knight's service vow, called homage, the oath fealty. Ho1. Homage. mage is to be done kneeling, holding 2. Fealty. his hands between the knees of the lord, saying in the French tongue, I become your man of life and limb, and of earthly honour. Fealty is to take an oath upon a book, that he will be a faithful tenant to the king, and do his service, and pay his rents according to his tenure. * Aid money to make the king's eldest son a knight, or to marry his eldest daughter, is likewise due to his Majesty from every one of his tenants in knight's service, that hold by a whole fee 20s. and from every tenant in socage, if his land be worth twenty pound per annum, 20s. + Escuage was likewise due unto the king from his tenant King's service tenure de per. sona regis. Tenants by grand serjeanrelief at the in capite is a ty were to pay full age of every heir, which was one of the lands so held ultra repriss. Grand serjeanty. Petty serjeanty. year's value These before mentioned be the rights of the tenure, called knight's service in capite, which is as much to say, as tenure de persona regis; and caput being the chiefest part of the person, it is called a tenure in capite, or in chief. And it is also to be noted, that as this tenure in capite by knight's service generally was a great safety to the crown, so also the Conqueror instituted other tenures in capite necessary to his estate; as namely, he gave divers lands to be holden of him by some special service about his person, or by bearing some special office in his house, or in the field, which have knight's service and more in them, and these be called tenures by grand serjeanty. Also he provided upon the first gift of lands to have revenues by continual service of ploughing his land, repairing his houses, parks, pales, castles, and the like. And sometimes to a yearly provision of gloves, spurs, hawks, horses, hounds, and the like; which kind of reservations are called also tenures in chief, or in capite of the king, but they are not by knight's service, because they required no personal service, but such things as the tenant may hire another to do, or provide for his money. And this tenure is called a tenure by socage in capite, the word soca signifying the plough; howbeit in this latter time, the service of ploughing the land, and of harvest works, is turned into money-rent, for that the kings do not keep their demesne in their own hands, as they were wont to do; yet what lands were de antiquo dominio corone, it well appeareth in the records of the exchequer called the book of Doomsday. And the tenants in ancient demesne have many immunities and privileges at this day, that in ancient times were granted unto those tenants by the crown; the particulars whereof are too long to set down. The institu tion of socage incept, and turned into that is now money-rent. These tenures in capite, as well that by socage as the others by knight's service, have this property: that the tenants cannot alien their lands without licence of the king; if they do, the king is to have a fine for the contempt, and may seize the land, and retain it until the fine be paid. And the reason is, by knight's service: when his Majesty made a voyage royal to war against another nation, those of his tenants that did not attend him there for forty days with horse and furniture fit for service, were to be assessed in a certain sum by act of parlia ment, to be paid unto his Majesty; which assessment is called escuage. because the king would have a liberty in the choice | park paled, and the like: and for that end he would of his tenant, so that no man should presume to enter into those lands, and hold them, for which the king was to have those special services done him, without the king's leave; this licence and fine, as it is now digested, is easy and of course. Office of alienation. A li There is an office called the office of alienation, where any man may have a cence of alien- licence at a reasonable rate, that is, ation is the third part of at the third part of one year's value of one year's value of the the land moderately rated. A tenant land modein capite by knight's service or grand rately rated. serjeanty, was restrained by ancient statate, that he should not give nor alien away more of his lands, than that with the rest he might be able to do the service due to the king: and this is now out of use. Aid, what. Tenants by knight's service in capite paid it to make the Kings eldest son a knight, And to this tenure by knight's service in chief was incident, that the king should have a certain sum of money called aid, due, to be ratably levied amongst all those tenants proportionably to their lands, to make his eldest son a knight, or to marry his eldest daughter. And it is to be noted, that all those that hold lands by the tenure of socage in capite, although not by knight's service, cannot alien without licence, and they are to sue livery, and pay primer seisin, but not to be in ward for body or land. or to marry his eldest daughter. Tenants by socage in capite. How manors were at first created. Manors created by great men in imitation of the king in the institutions of tenures. A manere, the word manor. Knight's ser By example and resemblance of the king's policy in these institutions of tenures, the great men and gentlemen of this realm did the like so near as they could; as for example, when the king had given to any of them two thousand acres of land, this party purposing in this place to make a dwelling, vice tenure re- or, as the old word is, his mansionserved to com- house, or his manor-house, did devise mon persons. how he might make his land a complete habitation to supply him with all manner of necessaries; and for that purpose, he would give of the uttermost parts of those two thousand acres, 100 or 200 acres, or more or less, as he should think meet, to one of his most trusty servants, with some reservation of rent, to find a horse for the wars, and go with him when he went with the king to the wars, adding vow of homage, and the oath of * fealty, wardship, marriage, and relief. This relief is to pay five pound for every knight's fee, or after that rate for more or less at the entrance of every heir; which tenant so created, and placed, was and is to this day called a tenant by knight's service, and not by his own person, but of his manors; of these he might make as many as he would. Then this lord would provide Socage tenure reserved by that the land which he was to keep for the lord. his own use should be ploughed, and his harvest brought home, his house repaired, his Relief is 51. to be paid by every tenant by knight's service to his lord, &c. Knight's service tenure created by the lord, is not a tenure by knight's service of the person of the lord, but of his manor. Relief of te nant in socage, and no wardship, or other profit upon the dying of the one year's rent tenant. give some lesser parcels to sundry others, of twenty, thirty, forty, or fifty acres: reserving the service of ploughing a certain quantity, or so many days of his land, and certain harvest works or days in the harvest to labour, or to repair the house, park-pale, or otherwise, or to give him for his provision, capons, hens, pepper, cummin, roses, gilliflowers, spurs, gloves, or the like: or to pay to him a certain rent, and to be sworn to be his faithful tenant, which tenure was called a socage tenure, and is so to this day; howbeit most of the ploughing and harvest service are turned into money rents. + The tenants in socage at the death of every tenant were to pay relief, which was not as knight's service is, five pound a knight's fee: but it was, and so is still, one year's rent of the land; and no wardship or other profit to the lord. The remainder of the two thousand acres he kept to himself, which he used to manure by his bondmen, and appointed them at the courts of his manor how they should hold it, making an entry of it into the roll of the remembrances of the acts of his court, yet still in the lord's power to take it away; and therefore they were called tenants at will, by copy of court-roll; being in truth bondVillenage or men at the beginning: but having ob- tenure by copy tained freedom of their persons, and gained a custom by use of occupying their lands, they now are called copyholders, and are so privileged that the lord cannot put them out, and all through custom. Some copyholders are for lives, one, two, or three successively; and some inheritances, from heir to heir by custom; and custom ruleth these estates wholly, both for widows' estates, fines, herriots, forfeitures, and all other things. of court-roll. it. | Manors being in this sort made at Court baron, the first, reason was that the lord of the with the use of manor should hold a court, which is no more than to assemble his tenants together at a time by him to be appointed; in which court he was to be informed by oath of his tenants, of all such duties, rents, reliefs, wardships, copyholds, or the like, that had happened unto him; which information is called a presentment, and then his bailiff was to seise and distrain for those duties if they were denied or withholden, which is called a court-baron and herein a man may sue for any debt or trespass under forty shillings value, and the freeholders are to judge of the cause upon proof produced upon both sides. And therefore the freeholders of these manors, as court of the incident to their tenures, do hold by to the tenure suit of court, which is to come to the of the freecourt, and there to judge between party and party in those petty actions; and also to inform the lord of duties, rents, and services unpaid to him from his tenants. By this course it is discerned who be the lords of lands, such as if the tenants die without heir, or be attainted of felony or treason, shall have the land by escheat. Suit to the lord incident holders. All money and escuage money is likewise due unto the lords of their tenants. |