that, as they say, this began first 20 Hen. III. yet | means each man might boldly both crave and have it is above three hundred and sixty years old, and of equal if not more antiquity than Magna Charta itself, and the rest of our most ancient laws; the which never found assurance by parliament, until the time of King Edw. I. who may be therefore worthily called our English Solon or Lycurgus. The fine for alienation is Now therefore to proceed to the reason and equity of exacting these moderate. fines for such alienations, it standeth thus: when the king, whom our law understandeth to have been at the first both the snpreme lord of all the persons, and sole owner of all the lands within his dominions, did give lands to any subject to hold them of himself, as of his crown and royal | diadem, he vouchsafed that favour upon a chosen and selected man, not minding that any other should, without his privity and good liking, be made | owner of the same. And therefore his gift has this secret intention enclosed within it, that if his tenant and patentee shall dispose of the same without his kingly assent first obtained, the lands shall revert to the king, or to his successors, that first gave them: and that also was the very cause, as I take it, why they were anciently seised into the king's hands as forfeited by such alienation, until the making of the said statute, 1 Edw. III. which did qualify that rigour of the former law. Neither ought this to seem strange in the case of the king, when every common subject, being lord of lands which another holdeth of him, ought not only to have notice given unto him upon every alienation of his tenant, but shall, by the like implied intention, re-have the lands of his tenants dying without heirs, though they were given out never so many years agone, and have passed through the hands of howsoever many and strange possessors. Not without good warrant, therefore, said Mr. Fitzherbert in his Nat. Brev. fol. 147, that the justices ought not wittingly to suffer any fine to be levied of lands holden in chief, without the king's licence. And as this reason is good and forcible, so is the equity and moderation of the fine itself most open and apparent; for how easy a thing is it to redeem a forfeiture of the whole lands for ever with the profits of one year, by the purchase of a pardon? Or otherwise, how tolerable is it to prevent the charge of that pardon, with the only cost of a third part thereof, timely and beforehand bestowed upon a licence ? The antiquity and moderation of fines upon writs original. Touching the king's fines accustomably paid for the purchasing of writs original, I find no certain beginning of them, and do therefore think that they also grew up with the chancery, which is the shop wherein they be forged; or, if you will, with the first ordinary jurisdiction and delivery of justice itself. For when as the king had erected his courts of ordinary resort, for the help of his subjects in suit one against another, and was at the charge not only to wage justices and their ministers, but also to appoint places and officers for safe custody of the records that concerned not himself: by which fol. 38. law for the present, and find memorials also to maintain his right and recovery, for ever after, to the singular benefit of himself and all his posterity; it was consonant to good reason, that the benefited subject should render some small portion of his gain as well towards the maintenance of this his own so great commodity, as for the supportation of the king's expense, and the reward of the labour of them that were wholly employed for his profit. And therefore it was well said by Litt. 34. H.6, Littleton, 34 H. VI. fol. 38, that the chancellor of England is not bound to make writs, without his due fee for the writing and seal of them. And that, in this part also, you may have assurance of good antiquity, it is extant among the records in the Tower, 2 H. III. Memb, 9, that Simon Hales and others gave unto him their king " unum palfredum pro summonendo Richardo filio et hærede Willielmi de Hanred, quod teneat finem factum coram justiciariis apud Northampton inter dictum Willielmum et patrem dicti Arnoldi de feodo in Barton." And besides that, in oblatis de Ann. 1,2, et 7, regis Johannis, fines were diversely paid to the king, upon the purchase writs of mort d'auncestor, dower, pone, to remove pleas, for inquisitions, trial by juries, writs of sundry summons, and other more. Hereof then it is, that upon every writ procured for debt or damage, amounting to forty pounds or more, a noble, that is, six shillings and eight pence, is, and usually hath been paid to fine; and so for every hundred marks more a noble; and likewise upon every writ called a præcipe of lands, exceeding the yearly value of forty shillings, a noble is given to a fine; and for every other five marks by year, moreover another noble, as it is set forth 20 Rich. II. abridged both by justice Fitzherbert, and justice Brooke; and may also appear in the old "Natura Brevium," and the Register, which have a proper writ of deceipt, formed upon the case, where a man did, in the name of another, purchase such a writ in the chancery without his knowledge and consent. 20 Rich. II. And herein the writ of right is excepted and passeth freely; not for fear of the words in Magna Charta, "Nulli vendemus justitiam vel rectum," as some do phantasy, but rather because it is rarely brought; and then also bought dearly enough without such a fine, for that the trial may be by battle to the great hazard of the champion. The like exemption hath the writ to inquire of a man's death, which also, by the twenty-sixth chapter of that Magna Charta, must be granted freely, and without giving any thing for it; which last I do rather note, because it may be well gathered thereby, that even then all those other writs did lawfully answer their due fines for otherwise the like prohibition would have been published against them, as was in this case of the inquisition itself. I see no need to maintain the mediocrity and easiness of this last sort of fine, which in lands exceedeth not the tenth part of one year's value, and in goods the two hundredth part of the thing that is demanded by the writ. Right, or some word of the like import, seems to be omitted here. Neither has this office of ours • originally to meddle with the fines of any other original writs, than of such only as whereupon a fine or concord may be had and levied; which is commonly the writ of covenant, and rarely any other. For we deal not with the fine of the writ of entry of lands holden in chief, as due upon the original writ itself; but only as payable in the nature of a licence for the alienation, for which the third part of the yearly rent is answered; as the statute 32 H. VIII. cap. 1. hath specified, giving the direction for it; albeit now lately the writs of entry be made parcel of the parcel ferm also; and therefore I will here close up the first part, and unfold the second. The second All fines upon oath. Before the institution of this ferm part of this and office, no writ of covenant for the treatise. levying any final concord, no writ of entry for the suffering of any common recovery of lands holden in chief, no doquet for licence to alien, nor warrant for pardon of alienation made, could be purchased and gotten without an oath called an affidavit, therein first taken either before some justice of assize, or master of the chancery, for the true discovery of the yearly value of the lands comprised in every of the same; in which doing if a man shall consider on the one side the care and severity of the law, that would not be satisfied without an oath; and on the other side the assurance of the truth to be had by so religious an affirmation as an oath is, he will easily believe that nothing could be added unto that order, either for the ready despatch of the subject, or for the uttermost advancement of the king's profit. But" quid verba audiam, cum facta videam ?" Much peril to the swearer, and little good to our sovereign hath ensued thereof. For on the one side the justices of assize were many times abused by their clerks, that preferred the recognitions of final concords taken in their circuit: and the masters of the chancery were often overtaken by the fraud of solicitors and attorneys, that followed their clients' causes here at Westminster; and on the other side, light and lewd persons, especially, that the exactor of the oath did neither use exhortation, nor examining of them for taking thereof, were as easily suborned to make an affidavit for money, as post-horses and hackneys are taken to hire in Canterbury and Dover way insomuch that it was usual for him that dwelt in Southwark, Shoreditch, or Tothil-Street, to depose the yearly rent or valuation of lands lying in the north, the west, or other remote part of the realm, where either he never was at all, or whence he came so young, that little could he tell what the matter meaned: And thus "consuetudinem peccandi fecit multitudo peccantium." For the removing of which corruption, and of some others whereof I have long since particularly heard, it was thought good that the justice of assize should be entreated to have a more vigilant eye upon their clerks' writing and that one special master of the chancery should be appointed to reside in this office, and to take the oaths concerning the matters that come hither who might not only reject such as for just causes were unmeet to be sworn, but might also instruct and admonish in the weight of an oath, those others that are fit to pass and perform it and forasmuch as thereby it must needs fall out very often, that either there was no man ready and at hand that could with knowledge and good conscience undertake the oath, or else, that such honest persons as were present, and did right well know the yearly value of the lands, would rather choose and agree to pay a reasonable fine without any oath, than to adventure the uttermost, which, by the taking of their oath, must come to light and discovery: It was also provided, that the fermour, and the deputies, should have power to treat, compound, and agree with such, and so not exact any oath at all of them. How much this sort of finance hath been increased by this new device, I will reserve, as I have already plotted it, for the last part of this discourse: but in the mean while I am to note first, that the fear of common perjury, growing by a daily and over-usual acquaintance with an oath, by little and little raseth out that most reverend and religious opinion thereof, which ought to be planted in our hearts, is hereby for a great part cut off and clean removed: then that the subject yieldeth little or nothing more now than he did before, considering that the money, which was wont to be saved by the former corrupt swearing, was not saved unto him, but lost to her Majesty and him, and found only in the purse of the clerk, attorney, solicitor, or other follower of the suit and lastly, that the client, besides the benefit of retaining a good conscience in the passage of this his business, hath also this good assurance, that he is always a gainer, and by no means can be at any loss, as seeing well enough, that if the composition be over-hard and heavy for him, he may then, at his pleasure, relieve himself by recourse to his oath; which also is no more than the ancient law and custom of the realm hath required at his hands. And the self-same thing is moreover, that I may shortly deliver it by the way, not only a singular comfort of the executioners of this office, a pleasant seasoning of all the sour of their labour and pains, when they shall consider that they cannot be guilty of the doing of any oppression or wrong; but it is also a most necessary instruction and document for them, that even as her Majesty hath made them dispensators of this her royal favour towards her people, so it behoveth them to show themselves peregrinatores, even and equal distributers of the same; and, as that most honourable lord and reverend sage counsellor, the late lord Burleigh, late lord treasurer, said to myself, to deal it out with wisdom and good dexterity towards all the sorts of writing. her loving subjects. 'This passage ascertains the date of this 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 entry. 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 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. of mean profits There yet remaineth untouched, the Proceeding order that is for the mean profits; for upon forfeiture 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. VIIL 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. able. show favour and merciful dealing: because it many | ticularly and at full, to the end that thereby these times happeneth, that either through the remote things ensuing, might the more fully appear, and dwelling of the party from the lands, or by the neg- plainly bewray themselves: first, that this present ligence or evil practice of under-sheriffs and their manner of exercising of this office hath so many bailiffs, the owner hath incurred the forfeiture of testimonies, interchangeable warrants, and countereight or ten years' whole profits of his lands, before rolments, whereof each, running through the hands he cometh to the knowledge of the process that run- and resting in the power of so many several persons, neth against him: other times an alienation made is sufficient to argue and convince all manner of without licence is discovered when the present owner falsehood; so as with a general conspiracy of all of the lands is altogether ignorant that his lands be those offices together, it is almost impossible to holden in chief at all: other times also some man contrive any deceit therein: a right ancient and concludeth himself to have such a tenure by his own sound policy, whereupon both the order of the acsuing forth of a special writ of livery, or by causeless counts in the exchequer, and of the affairs of her procuring a licence, or pardon, for his alienation, Majesty's own household, are so grounded and built, when in truth the lands be not either holden at all that the infection of an evil mind in some one or of her Majesty, or not holden in chief, but by a twain cannot do any great harm, unless the rest of mean tenure in socage, or by knight's service at the the company be also poisoned by their contagion. most. In which cases, and the like, if the extre- And surely, as Cicero said, "Nullum est tam desmity should be rigorously urged and taken, espe- peratum collegium, in quo non unus e multis sit cially where the years be many, the party should be sana mente præditus." Secondly, that here is great driven to his utter overthrow, to make half a use both of discretion, learning, and integrity of purchase, or more, of his own proper land and living. discretion, I say, for examining the deInequality of About the discovery of the tenure in grees of favour, which ought to be im- rates justifichief, following of process for such parted diversly, and for discerning the alienation made, as also about the call-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 noteworthy, that favour is here sometimes right worthily bestowed, not only in a general regard of the person, 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 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 unkindly if they have not more than market measure. chief when he ing upon sheriffs for their accounts, and the bring- The person. Again, the consideration of the place The place. or county where the lands do lie, may 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 1 E. III. c. 12. the statute, 1 E. III. cap. 12, willeth, 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, |