divided Chapter thereof differing from his Tenement in Villenage shewing there the Suites and Plaints of Coppy-holders saying that they haue an Estate of Inheritance according to the Custome And delivereth his owne opinion that if a Coppy-holder doing his Services bee compelled by the Lord he shall haue an Action of Transgression And sayth that Danby and Brian 21. Ed. 4. were of the same Minde according to which is Bracton and the sayd Presidents of Hen. 3. and the Writ vsed in Tempore R. 2. besides many other reasons at the Common-Law c. prooving that by use and circumstance things may alter and change their originall nature As for example the service of Socage Tenure was at the beginning as Mr. Littleton sayth to Till the Lords Land c. And yet now by consent of the Lord and by continuance of time are turned into money and other Services in lieu thereof Even so may be sayd of Coppy-holds as long as the Tenants themselves be free though their Tenure were at beginning never so bound and base yet by course of time they may gayne more liberty and freedome and grow to more estimation and account An other reason and Rule there is at the Common-Law to this intent that some things there were which in the beginning were but voluntary and yet in the end by continuance became Compulsary as appeareth 27 Ass praescript Bract. That a man that did at the first of his owne meere benevolence repayre a high way or a Bridge by often using was afterwards compelled volens nolens Even so it may be sayd of the Coppy-holders who at the first held but at the free will of the Lord yet now by usage and continuall granting time out of minde they haue gotten an estate after the Custome that doing their Services and behaving themselues well they cannot by Law or Reason be put from them Thus much for the allowance of Coppy-holders by the Common-Law now let us consider the Reputation of them by the Statutes and Parliament Law It appeareth by the Statute of 1. Rich. 3. 4. 19. Hen. 7. 23. That a Coppy-holder that may dispend twenty sixe shillings eight pence by the yeare shall be Empanelled on a Iury as hee that may dispend twenty shillings by the yeare of Free Lands And by the Statute of the 2. Ed. 6. cap. 8. the Interest of Coppy-holders are Reserved being found by Office after the Death of the Kings Tenants as well as other Estates at the Common-Law and so doth the Statute of Monasteries 31. Hen. 8. cap. 13. 1. Edw. 6. cap. 14. preserue Coppy-holds from dissolving And it will seeme that Coppy-holders are for the Common-wealth and therefore to bee maintayned for that some haue beene erected and established by Parliament which were not de visible by Coppy before as appeareth by the Statutes 32 Hen. 8. 2. 2. Ed. 32. What shall be sayd a Mannour and a Mannour as will mayntaine a Coppy-hold A Mannour consisteth in two parts viz. Demeasnes and Services and neyther of these two parts hath the name of a Mannour without the other for as a Messuage or Lands cannot be called Demeasnes without Tenements thereunto belonging to pay Rents and do Services but doth still beare the name of Messuage or Lands So on the other part though a Man have Tenements to pay him Rents and doe him Services and no Messuage or Lands whereupon to keepe his Court and to receiue his Rents and Services this cannot be called a Mannour but onely a Signiory in grosse Fitz. na brev s 3. 8. Demeanes are so called for that the Lord himselfe occupieth and manureth them In son maine Demeasne But all Lands that have been in the Lords owne hands bee not called Demeanes for all Free-holds and Coppy-holds were in his owne hands at the beginning But Demeanes is that which is now and time our of Minde have beene in the Lords hands or occupation of his Bay liffe or Servants And that also which auncient Coppy-hold may be to some purpose called Demeasnes because in every Surrender in Manus Domini and every grant extra manus Domini the Lord hath a medling with it and may thereupon keepe his Court and for the most part cut downe Timber and such like And that it is also called Demeasnes which now is in the Lords hands by any new Escheate or Forfeiture And also the Lands which are in the hands of the Coppy-holders is such a Demeasne as with other Services will make a Mannour though the Lord hath none other demeanes there in his owne hands nor in the hands of his Bayliffe or servants Services as with a Demeasne shal make a Mannour to maintaine Coppy-holds is where a man holdeth Lands or Tenements freely to suite to the Court of the Lord of the Mannour within the sayd Fee But yet euery kind of Service will not make a Mannour for Services are of two kinds viz. That is by Tenure and by covenant Service by Tenure is also of two sorts as if a man at this day giveth his Land in tayle or leaseth it for Life or Yeares saving the Reversion here is a Service of Fealty incident to this Tenure betweene the Doner or the Lessor and the Donee or the Lessee And yet though this be a Service by Tenure yet is it no such Service as will make a Mannour For if a man at this Day be seised of twenty Acres of Land and Enfeffeth nineteene severall persons of nineteene of these Acres saving the twentieth to himselfe and reserveth of every of his Fcofees suite of the Court and other Services to be done to this Court to be held on the twentieth Acre though the Feofments be by Deed indented or in tayle or of Lives yet all is voyde and avayleth not to make a Mannour But it maketh onely a Tenure in grosse for a Tenure may by divers meanes be created at this Day but a Mannour by no way by a Common person Plow Com. 2. 693. A Mannour must be by Prescription and the Services by Continuance time out of minde But although a man at this Day cannot make a Mannour yet hee may in some sort enlarge a Mannour by adding more Services unto it 9. Ass A man seised of a Mannour did give parcell of the same to hold of him by Suite to his Mill within the same Mannour for this Service the Lord may distrayne and it is their held to be accounted parcell of the Mannour In like manner a man may by reserving upon a gift Intayle or Lease for Life Services ingrosse increase the Services of an ancient Mannour Signior grant le Demeasnes Services del son Mannour de Norkelsey c. extend en auter Towne per le melior opinion des Iustices de Common Banck le grantee c. keepe a Court there and so a Mannour to be created at this Day What shall be sayd a Mannour or a Tenure in his proper nature or common-Common-Law and what in respect of Usage or
Custome to maintaine Coppy-holders It is to bee noted that although a Mannour of his proper ought to consist of demeanes and services yet in some cases that may bee a Manour and maintaine Coppy-holders and a Court Baron by usage and custome which otherwise by Common Law is no Manour nor cannot so be called c. A man seized of a Manour whereunto bee divers free Tenants divers Coppy-holders and divers speciall Customary Tenants and the Customary Tenants do hold to give atendance on the Free holders at the Lords Court All the Free Tenants dye saving one the Lord doth bargain and sell the Manour to an Estranger This is now in respect of the Free Tenements a Tenure and no Manour in respect of the Coppy-holders both a Manour and Tenure and in respect of the Customary Tenements neither Manour nor Tenure If divers do hold Lands to dine with the Lord every Sunday in the yeare this maketh neither good Tenure nor Manour But if they hold to wait on the Lord every Sunday at dinner and to dine with him this maketh a good service but no good Tenure If divers doe hold Lands by Coppy of the Mannour of D. and so have done time out of minde and by the like time there hath beene no Free holders to the said Mannour Although this be no Mannour in his proper nature yet by usage it is a good Mannour to maintaine Coppy-holds A man seised of a Mannour which time out of minde hath beene called by the name of the Manour of S. and doth demise the same by the name of the Mannour of S. this is good If a man seised of a Mannour whereto be six Free holders and six Villaines Regardants The sixe Free holders dye having Issue sixe daughters the Villaines enterrary with them yet the same is a Mannour and the villaines thereto regardant If a man seised of a Mannour whereto hee hath Leet and wrecke of the sea by prescription all the Tenancyes Escheate yet the Leete and the wrecke still remaine and it is a Mannour to that purpose If divers doe hold Lands by prescription to finde the Lords mans meat and hounds meat when hee commeth to hunt the Fox in the said Lands this maketh a good Tenure but no good Mannour If divers do hold Lands to doe suit and service at the Lords Court This is most properly such service as maketh a Mannour but if it be to doe suit and service at the Lords Couri when it pleaseth themselves this is neither Mannour nor Tenure If divers doe hold Lands to repaire a High way within a mile compasse without the bounds of the Lord of the Mannour this makes a good Tenure but no Mannour But to repayre or mend the wayes within the Precinct of the Mannour is good to enlarge the Mannour If divers doe hold Lands to pray for the prosperous Estate of the Lord and his Heires this maketh a Tenure but no good Mannour If divers doe hold Lands of the Lord to wayte upon him at twenty dayes warning twenty miles distant from the Mannour this maketh a good Service but no good Tenure But if it be to wayte upon the Lord within the sayd Mannour by certayne space this maketh both a good Tenure and a good Mannour If divers holde Lands to beate or kill the Lords Tenants that shall doe Trespasse on the Lords Demeasnes this is neyther good Tenure nor good Mannour But if it be to beate and kill the Kings enemies that shall doe so this maketh both a good Tenure and a good Mannour If Divers hold Lands by Prescription to do Service to the Lord to his Court of the sayd Mannour twenty miles distant at a place certaine This is both a good Tenure and a good Mannour But if it be to do Service to his Court at another Mannour this without Prescription cannot be severance from the first Mannour If Divers doe hold to come to the Lords Court and there to doe nothing this maketh neither good Tenure nor good Mannour But to come to the Court though not to be of the Homage yet to offer Amersements or make Certificates or any other Service to the Lord this maketh a good Tenure and a Mannour If any do hold Lands to do Divine Service before the Lord and his Tenants in the Court-house before the beginning of every Court this maketh both a good Tenure and a good Mannour What shall be sayd a good Custome to be able to maintaine Coppy-holds A Custome to make a Coppy-hold must be of necessity in the same Mannour where the sayd Coppy-holds are so granted viz. That the same Lands are and time out of minde haue beene onely Demised and Demisable by Coppy of Court Role for otherwise the Lord cannot grant it by Coppy because hee cannot beginne a Custome at this Day But if it have beene by like time granted by Coppy though sithence it came to the Lords hands yet if the Lord never Demise the same by Free Deede nor otherwise but by Coppy then he may well grant agayne the same by Coppy for it is neyther the person of the Lord nor the occupation of the Land that eyther maketh or marreth the Coppy-hold But onely the usage and manner of Demising the same for the prescription of a Coppy-holder consisteth neither in the Land nor in the Occupier but onely in the Usage of the Demising THE DIVISION OF CVSTOMES viz. Customes Prescriptions Vsage and Limitation THese foure though they be in some confounded together and indeede are of great Affinity yet there be divers differences in their severall natures betweene them Custome is where by continuance of time a Right is obtayned concerning divers persons in common Prescription is where by continuance of time one particular person obtayneth Right against an other Vsage is by continuance of time the efficient cause of them both Limitation is where a right may be obtained by reason of a non claime by the space of a certaine number of yeares differing in the Accoumpt of time from custome and prescription But what measure of time shall make a Custome divers have differed in opinion some judging the same to bee according to the Computation of yeares from the time of K. Ed. 1. untill the Statute of M. 1. which appointeth the limitation in a writ of right The accompt of which time unto the said Statute from the said K. time is 76. yeares others have thought a hundred years maketh a prescription because in old time an hundred yeares was accompted a Fee simple But the true measure thereof according to Master Littletons Rule is where a Custome or Usage or other things have beene used so long as mans memory cannot remember the contrary That is when such matter is pleaded that no man then in life hath not heard any thing nor know any proofe to the contrary And by this it appeareth that Customes and prescriptions resteth onely in the memory of man limitation consisteth onely of a certaine time which hath a
right or in some others a sufficient ability or capacity to prescribe Touching the first it is to be understood that hee which will prescribe must have a certaine and indefeazable estate and not otherwise As if a Tenant at Will or at Sufferance after hee hath occupied the Land for ten yeares will prescribe to have the same for ten yeares this is not good But a Tenant at Will after the Custome although he came in at the first by the Lords will yet doing and paying that which hee ought hee may prescribe to hold the Land whether the Lord will or no And although a Coppy-holder may prescribe in this forme against his Lord yet against an Estranger for a common or such like kind of profit hee cannot prescribe bâ—t in the right of the Lord neyther yet can a Tenant for life or for yeares prescribe in the right of their owne Estate onely because it lacketh continuance to make a custome or prescription except in some cases of necessity the Lord of a Mannour or of a Patronage for yeares or life may grant a Coppy in perpetuity or presentation for a longer time then the estate of the Grantor doth continue and this is admitted causa necessitatis and not Iure prescriptionis To the second Capacity must be in himselfe that doth prescribe which Ability and Capacity must consist in the person of him that doth prescribe For as prescription may be sometimes in respect of estate Mannour Lands or Offices so may prescription sometimes be in respect of person which person is not to be understood of a private person but of a body Politicke not that many persons may prescribe except the same be incorporate and to prescribe in respect of their incorporate Capacity and not in respect of their private Capacity As if the Inhabitants of Dale will prescribe to have Common in the Soyle of S. this is no good prescription for that they be not Incorporate they must prescribe that H. Lord of the Mannour of Dale for him and his Tenans within the said Mannour have used to have Common within the sai Soyle so is it for Coppy-holds for they must prescribe in the name of their Lord in such a case If a man prescribe that hee and his Ancestors have had such an Annuity this is not good But if a Bishop doe prescribe that hee and his predecessors have had such an annuity this is good The pleading of Prescription must bee used in forme of Law as other matters that be pleadable and forme must be used likewise in pleading of Coppy-holds and other Customary Titles for avoyding of confusion and discord as well as in other cases of the Common Law the forme of pleading prescription doth differ as the quality of the thing whereof prescription is made and somtimes doth differ as the persons doe differ which make the prescription As if a Coppy-holder makes his Title to his Land by prescription he must plead that the same Land is and hath bene time out of minde Demised and Demiseable by the Coppy of Court Role according to the custome of the Mannour wherof it is holden If two men as yonger brethren will make their Title to Land in Gavell-kinde they must say that the same Land is of the Tenure and Nature of Gavell-kinde which time out of minde have bin parted and partable between Heires males So if the yongest Sonne maketh his Title to Land in Borough English he must plead that time out of minde the Custome of the said Mannour hath bin that when or at what time soever a Coppy holder dyeth Seised of any Coppy-hold Lands in the same Mannour having divers Sonnes that the same hath used Iure Hereditario to descend unto the youngest Sonne c. And as the forme doth differ in the things wherof the Prescription is commonly made so doth it differ as the Persons do differ which prescribe as a private person shall prescribe in him and his Ancestors whose estate he hath An Incorporate person in him and his Predecessors A Lord of a Mannour in him and them which were Lord of that Mannour A Sheriffe in him and those which have beene Sheriffes of the same County A Steward of a Mannour in him and those which have beene Stewards there A Free holder in him and them which have beene Stewards to the said Lord. A Coppy-holder shall Prescribe against an Estranger that the Lord of the Mannour for him and his Tennants at will have used the like c. WHAT NECESSITY A Court Baron is of whereof it doth Consist how it is defined and what shall bee said a sufficient Court Role to make a Coppy-hold EVery Mauour hath a Court Baron incident to it of common right and common necessity and this Court Baron consisteth of foure speciall parts viz. The Lord the Steward the Tennants and the Bayliffe A Court Baron is defined to bee an assemblie of these partes together within the said Mannour to take Councell care and enquire of causes concerning the same Mannour to see justice duely executed the acts and ordinances there done to bee recorded in the Roles of the same Court which Roles are the evidence of all ordinances dutyes customes and conveyances the Lord and Tennants of the said Mannour and are to bee entred by the Steward or an Officer indifferent betweene the Lord and his Tennants and the same Roles to remaine with the Lord thereby to know his Tennants his Rents and his Fines his Customes and his services And the particular grant of every Coppy-hold to bee coppyed out of the Roles the coppyes thereof to bee delivered to every particular Tennant neither can they make any other Title to their said Tennements but by their said Coppy If the Lord of the Mannour having Coppy-hold Lands Surrendred into his hands will in the presence of his Tennants out of the Court grant the same to an other and the Steward entreth the same into the Court Booke and maketh thereof a Coppy to the grantee and the Lord dye before the next Court this is no good Coppy to hold the Land But if the same Surrender and grant bee presented at the next Court in the life of the Lord and the grantee admitted Tenant and a Coppy made to him this is good Coppy If the Lord of a Mannour having ancient Coppy-hold in his hands will by a deed of Feofment or by a Fine grant this Land to one to hold at the will of the Lord according to the Custome yet this cannot make a good Coppy-hold If the Lord in open Court doth grant a Coppy-hold Land and the Steward maketh no entry thereof in the Court Roles this is not good though it bee never so publicke done nor no Collaterall proofe can make it good But if the Tenant have no Coppy made unto him out of the Role or if hee loose his Coppy yet the Roles is still a sufficient tytle for his Coppy-hold if the Roles bee also lost yet it seemeth that by proofe hee can
for the same Coppy-hold now is hee become a good Coppy-holder without any further Admission If a Coppy-holder surrendreth his Land to the use of I. S. for life the Remainder to the use of R. N. for life and the Lord granteth the same accordingly and admitteth I. S. it seemeth this is a good admission to R. N. that is in the Remainder A Coppy-holder in Fee dyeth seised his heire may make a surrender to the use of a stranger without admission quaere But if a Coppy-holder surrender to the use of I. S. this I. S. cannot surrender to the use of a stranger without being first admitted him selfe If a Coppy-holder Surrender all use of the joyntly and they are admitted if the one of them dyeth the surviver needeth not t◠bee admitted againe for the moytie But if a Coppy-holder having Issue two daughters and they are admitted and then the one of them dieth the other must needs be admitted for the other moyty for hee takes the same by discent L'heire dun Coppy-holder part prender profits avera accion de travers et Ferra Post fratris sufficicum deveant admittance 12. Eliz. 291. et part faire lesses per ans Denby et Bullock WHAT SHAL BE SAID a forfeiture of a COPPY-HOLD THE Tenant by Coppy standeth bound by his Tenure to the Lord that if hee doth any thing to the Lords dis-inheritance or in some cases if he doth transgresse the duty of a good Tenant he shall forfeit his Coppy-hold but because all offences are not equall so likewise there are degrees of punnishment for there is a difference betweene offences done wittingly and willingly and faults ignorantly and unwillingly committed And therfore some offences are forfeitures ipso facto some are onely forfeitures when they are presented and not before and some are onely fineable Forfeitures ipso facto are offences that lye in mis-fesans be apparent forfeitures when they are presented only are offences that lye in non fesans and is not apparent nor affirmatively to bee proved without presentment Offences Finable are offences of contempt and not of dis-inheritance As if a Coppy-holder will in the presence and sitting of the Court Baron say 〈…〉 extort and exact un-due 〈…〉 his Tenants or such 〈…〉 this is onely Fineable But 〈…〉 and there say being called forth to bee sworne of his homage that hee is none of the Lords Tenant this makes a Forfeyture of his Coppy-hold But if hee will there say that hee will shortly demise away that hee will bee no longer of any of the Lords Coppy-holders this is neither cause of Forfeyture not Fine If a Coppy-holder Sendente curia doe strike an other Coppy-holder or any other stranger this is onely Finable and maketh no Forfeyture If the Steward sheweth forth a Court Role to proove that I. S. is a Coppy-holder and this not withstanding hee will in the Court say that hee is a Free holder and sheweth forth a Free deed and claime thereby and teareth in peeces the Court Role and publisheth the free deed this a cause of Fine and Forfeyture But if the said Tenant will there upon some Colourable doubt and question which may arise whether hee bee a Free holder or a Coppy-holder say to the Steward because hee knowes not whether the rent that hee should pay bee Free rent or Coppy-hold rent he will pay it with protestation that the rent may be recorded as it shall fall out and with like protestation offer and do his service though in truth hee bee a Coppy-holder yet this deserveth neither Fine or Forfeyture If a Coppy-holder cannot pay his rent and will not doe his service this offence is on the Negative and maketh no forfeyture till it be presented Tenant per Coppie ne poet facere wast ne couper bois per vender mes pro reperacontantum 9 Hen 4. 12. 43. Ed. 3. 32. 80. But if a Coppy-holder doth Alien his Land by Free deed or will commit waste or demise his Coppy-hold contrary to the Custome or will sue a replevin against the Lord for a Distr lawfully taken for his Rent or service due or disclaime in the Land being summoned to the Lords Court or will there claime it as his free hold or will in any other Court untitle any other Lord unto it or bee attainted of treason or felonie or continue out-lawd or excommunicate during the Lords Court or refuseth to goe with his Lord or other commissionours for that purpose in the service of the prince to suppres Rebells riots or unlawfull assemblies All these offences be apparent mis-fesance and forfeiture ipso facto without any presentment But if a Coppy-holder being of the grand Inquest at the Assizes or Sessions shall indit his Lord of any manner of offence committed against the Prince or Lawes of this Realme or shall upon proces Compulsary give evidence against his Lord which is in any cause betweene his Lord and an other Common person or betweene the prince and his Lord without compulsary proces or shall make any bodily arest of his Lord by the commandment of the Shriefe or other lawfull authority or shall bring any Action or Suit against his Lord in any of the Queens Courts except a Replevin case aforesaid All these last recited be cause of neither Fines or forfeitures of any Coppy-hold Also a Coppy-holder not claiming his Coppy-hold after the death of his Ancestor within a yeare and a day at the Court if any bee it is a forfeiture for ever per. opin Catline Slowelle Case 372. ct c. il pesse dee bone custome in plusors Mannors If Coppyholders being on a Jury will not finde the waste committed or will not present things presentable this is a forfeituer of their Tenures if they be Coppy-holders by the opinion of Catlin Dier and Bracton 4. Eliz. Dier 211. pe 31. 6. et 7. Eliz. 233. b. 9. Hen. 6. 44. b. If a Coppy-holder will not be sworne to present such offences as are forfeitures this is a forfeiture of his estate so if he alien or make Coppy-hold free for tenne pound the Lord may enter for they are willfull acts for which the Lord may enter without presentment but for negligent offences as for not doing of services or not acceptance of a Coppy-hold after the death of his ancestor the Lord cannot seise without presentment of the homage And if an infant within the yeare after the death of his ancestor will not after the Court holden and proclamation made pray to bee admitted it is no forfeiture unlesse the Custome of the Mannour be that an infant ought to forfeit his estate by such negligence for it is but a claime at Common Law which bars not an infant which hath not discretion Betweene Hautrey and Buckshire and one of his Coppy-holders 12. Eliz. Rot 96. If thirteene Coppy-holders bee sworne in a base Court and twelve agree to give Verdict the thirteenth will not it is not a forfeiture for it is a good verdict
THE RELATION BETWEENE THE LORD OF A MANNOR AND THE COPPY-HOLDER His TENANT Delivered in the Learned Readings of the late Excellent and Famous Lawyer CHAR. CALTHROPE of the Honorable Society of Lincolnes-Inne Esq Whereby it doth appeare for what causes a Coppy-holder may forfeite his Coppy-hold Estate and for what not and likewise what Lord can grant a Coppy and to whom Published for the good of the Lords of Mannors and their Tenants Non magis promaenibus quam pro servandis legibus liber Cives pugnare debent siquidem sine maenibus Respublica potest consistere sine Legibus non potest LONDON Printed for William Cooke and are to be sold at his shop neere Furnivals Inne gate in Holborne 1635. COPPY-HOLDS The first Lecture THE great injuries which are offered and small remedies which are used in cases of Coppy-holds which as it seemeth doe grow by the obscure knowledge what Law Custome judgeth in these matters of Coppy-hold moveth mee to shew some part of my Travailes in these poynts not thereby to animate Coppy-hold Tenants which would by too much advancing their Tenure pretend only to be Tenants by Custome and not Tenants at Will nor to encourage any Coppy-hold Lord which could by too much abasing these Tenures pretend to have such Coppy-holders onely Tenants at Will and not regard their customes but to proove unto you that as their Title and name sheweth they are Tenants at will and Tenants by Custome in their Land and they consist both of their Lords Will and Custome of the Mannour in their degrees And that this Will and Custome be contained within the Limits of Law and reason according to such rules as shall be hereafter declared First I will shew what a Coppy-hold is then whereof it doth consist and what estimation the same is of by the Antiquity of time and by the Lawes and Statutes of this Realme Master Littleton in his first booke of Teuures defineth a Tenant by Coppy of Court Role and to be where a man is seised of a Mannour in which is a Custome that hath been used time out of minde that certaine Tenants of the same Mannour have used to have certaine Lands and Tenements to hold to them and their heires in Fee Simple Fee Taile or for Life at the will of the Lord after the Custome of the Mannonr And that they have no other evidence but the Roles of the Court by which difinition and by certaine other observations of the Law it may bee gathered that a Coppy-hold doth consist of these sixe principall grounds or Circumstances viz. First there must be a Mannour for the maintenance of Coppy-hold Secondly a custome for the allowing of the same Thirdly there must be a Court holden for the proofe of the Coppy-holders Fourthly there must be a Lord to give the Coppy-hold Fiftly there must be a Tenant of Capacity to take the Tenement Lastly the thing to bee granted which must bee such as is grantable and may bee held of the Lord according to the Tenure But first before I speake of these Circumstances I will briefly declare unto you the Dignity and Estimation of Coppy-holders by the Antiquity and allowance of time and by the Lawes and Statutes of this Realme It appeareth by a certaine booke intituled De priscis anglor legibus Translated out of Saxon Tongue by Master Lambert of Lincolns Inne that Coppy-holds were long before the Conquest and then called by the name of Bookeland as you may see in the beginning of the Booke in the Treatise De rerum Verborum explicatione and by Master BRACTON an Ancient Writer of the Lawes of ENGLAND who in his Booke VVriteth divers presidents and Records of King Henry of allowance Copi-holders or Customary Tenants that do their due services the Lords might not expell them according to the opinion of the latter Judges in the time of Edward the 4. and Edward the third And it appeareth by Master Fitz-Herberts Abridgements they were preferred by a speciall writ for that purpose and the Lord thereby compelled to do right And in the time of Henry the fourth Tenants by the Virge which are the same in Nature as Copy-holders be were allowed by the name of Sokemaines in Franktenure as in the time of Henry 7. were allowed and of the King for defence of their estates So that in every Kings time Copy-holders have had their allowances according to their natures unto this time present wherein our Justices are of opinion as the said grave Sages have beene in times past Now I will further proceede in some perticuler use of these Tenures according to the Lawes and Statutes of this Realme And because I finde none that doth so much deface the estimation of Copy-holders as Master Fitz Herbert doth in his Writ Derecto Clauso I will begin with his words and judgement in the same and proceed to other Authorities Master Fitz-Herbert saith that this Terme Coppi-holders is but a new Terme newly found out that in old time they were called Tenants in Uilenage or base Tenure and this saith he doth appeare in the old Tenures for no Coppy-holders are there spoken of although there were at that time such Tenants But then saith they were called Tennats in Vilenage and saith as appeareth 44. Henry 4. If a false judgement be given against them in the Lords Court they shall have no remedy but sue to their Lord by petition because to hold by Coppy of Court Role which is as hee saith base Tenure is to hold in Villenage which said opinion of Fitz-Herbert have beene by divers wrested to make no diuersity betweene Tenure in Villenage and Tenure by Coppy of Court Role or base Tenure wherein whatsoever interpretation may be made Master Fitz Herberts meaning is very plaine and the Booke of the old Tenures is to be farre otherwise understood as also I suppose all other Authorities in our Law doe make and appoint difference betweene the Tenures And first touching the Booke of the old Tenures it is plaine that the Booke maketh a plaine distinction betweene Tenure in Villenage and Tenure in Fee Base which is understood this Tenure by Coppy-hold and calleth it a Fee although a base Fee and maketh diverse distinctions betweene them and sayth that the Tenants in Villenage must doe all such things as their Lord will command them But otherwise it is of the Tenants in Base Fee And this it seemeth the sayd Booke of olde Tenure to be by Mr. Fitzherbert mis-recited which I am the bolder to affirme saving the due reverence to his Learning because one Mr. Thornton of Lincolns Inne a man very learned in his late Reading there upon the Statute of Forger facts Speaking of Forging Court Roles did playnly affirme the Booke of the olde Tenures to be mistaken by Mr. Fitzherbert in this poynt And besides for the further credite of Coppy-holds we ought to consider the great Authority of Mr. Littleton who amongst the rest of his Tenures doth make a
Prescriptions must be according to Common right that is to prescribe that is to have such things as is their right and reasonto have and not by Custome of Prescription to claim things by way of extortion or thereby to exact Fines of other things of his Tenant without good cause or consideration If the Lord will prescribe to have of every of his Coppy-holders for every Court that shall bee kept upon the Mannour a certaine sum of money this is no prescription according to common right because he ought for Justice sake to doe it gratis And so it is if the Shriefe will prescribe to have a certaine Fee for keeping his Turne this is not a good prescription But if the Lord will prescribe to have a certaine Fee of his Tennants for any extraordinary Court purchased onely for the benefit of one Tennant as for one Tennant to take his Coppy-hold or such like this is a good prescription according to the common right If the Lord will have of any of his Tenants that shall commit a pound Breach a hundred shillings for a Fine this is good Prescription but to challenge of every stranger that shall commit a Pound Breach a hundred shillings this is no good prescription If the Lord will Prescribe that every of his Coppyholders within his Mannour that shall marry his Daughter without licence shall pay a Fine to the Lord this is no good Prescription according to common right THAT A CVSTOME must be upon a good Consideration and what shall bee said such a Custome and what not COnsideration is a great effect in all Lawes and Customes and hath as great an an operation as any one thing belonging to the Law for in most causes it onely guideth and directeth Rights properties uses and estates sometimes according to the limitation and sometimes contrary to the limitation as well in cases of Custome as in cases of common Law for consideration is the beginning of all Custome the ground of all uses the reason of all rights and the cause of all duties For without Consideration no Custome can have continuance nothing is wrought by any conveyance no interest transferred no right remooved no propertie changed nor duty accrewed As if the Lord of a Mannour will prescribe that whosoever passeth the Kings high way which lyeth through his Mannour shall pay to the Lord of the Mannour twelve-pence for his passage This prescription is not upon good Consideration But if hee prescribe to have a penny of every one that passeth over such a Bridge which the Lord of the Mannour doth use to repaire this is good prescription upon good consideration If the Lord will prescribe to have a Fine at the Marriage of his Copy-hold Tenants in which the Custome doth not admit the husband to bee Tenant by curtesie nor the Wife to be Tenant in Dowre or have her Widdowes estate the prescription of such a Fine is not good But in such Mannour where the Custome doth admit such particular estates there a prescription for a Fine at the Marriage of his Coppy-holders is upon good consideration If a Coppy-hold surrender his Land to the use of I. S. so long as I S. shall serve him in such an Office if I S. refuse to serve his estate doth cease If a Coppy-holder doth surrender his Land to the use of a stranger in consideration that the same stranger shall marry his daughter before such a day if the marriage succeeds not the stranger takes nothing by the Surrenderer But if the Surrender bee in consideration that the stranger shall pay such summe of money at such a day though the money bee not payed yet the Surrenderer standeth good If the Coppy-holder in consideration of twentie pounds to bee payd by I. S. doth make a Surrender of his Lands to N. R. this Surrender is to the use of I. S. because of the Consideration expressed in the Coppy and not to the use of N. R. But if in the Coppy the use be expressed to N. R. and no consideration mentioned the use expressed shall stand against any consideration to be averred THAT A CVSTOME MVST be compulsary and what shall be said such a Custome and what not CUstome or Law must be Compulsary and not at the liberty of a man whether he will performe it or not for then it were of no force for all Customes and Lawes have their effect in two poynts That is in bidding that which is just and in forbidding the contrary So that Lawes and Customes are refrainers of liberties and do demaund execution of Justice not that every man should have or doe what they would but that which by Justice they ought whereunto by duty of Law and Custome hee is compellable for otherwise it were Voluntary in him which were to the infringing of the Law and good order As the Poets Oderunt peccare boni virtutis amore Oderunt peccare mali formidine poenae If the Lord will prescribe that every of his Tenants shall give him ten shillings a moneth to beare charges in time of Warre this is no good Prescription But to prescribe that they ought to pay ten shillings a moneth c. this is good For payment is compulsary but gift is Voluntary If a Coppy-holder doe Surrender his Land to the use of S. so that the sayd I. S. do pay him twenty pounds at such a day If I. S. please to pay the same this is an absolute Surrender and not conditionall because the compulsary But many Customes there are which at the beginning were Voluntary and now by continuance are growne Compulsary According to the Civill Law Quae initio fuerunt voluntatis ex post fact fuerint necessitatis which also agreeth with the Common-Law in many cases as I have partly touched before THAT A CVSTOME MVST be without preiudice to the King and by what prescription the King shall be bound and what not THE King hath that Prerogative over his Subjects that hee is not tyed to time as a common person is for though a common person may loose his right by non claime within a certaine time the Kings right is still to be preserued for Nullum tempus occurrit Regi Yet in speciall cases where the King is not Intituled agaynst such prescription by matter of Record there such Customes shall bind the King As for example if a Coppy-holder prescribeth that he holdeth of the King by Coppy this is good and by fine certaine and not arbitrable to have Waife and Strayes and Wrecke but not Cattalla feloni fugitorum and vtlagatorum without Charters The Kings Advowson shall never fall into lapse for not presenting within sixe moneths THAT A CVSTOME OVGHT to consist of perdurablenesse of Estate and of an able capacity TO those former parts whereupon I have declared a good Custome to consist may be added to eyther parts viz. That he which will claime by Custome must have a sufficient and perdurable estate to prescribe and also in his owne
to have and to hold c. whose estate hee had and by another Tenant rendring the yearely Rents Customes and Services and also hee produced certaine Witnesses who proved the Land to bee Coppie by the space of 69. yeares The plaintiffe to destroy the Title of that evidence shewed certaine Rentals that they were Free Lands c. 9. et 10. Henry 7. and not Coppy and also another Rentall to that intent in 12. Henry 6. which prooved that those Lands were leassee for twenty yeares Per Cur. this evidence doth not disproove the Coppy-hold for it was not within the time of memory but if hee had shewed the Indenture of Leasse made within 50. yeares or 80. yeares so that a man might remember it then it had beene good although the Statute of limitation extends not unto it by the Justices such evidence as prooves it to be within time of memory is good Also by them if those Lands bee in the hands of the Lord by forfeiture Escheat or Surrender yet the Custome remaineth for he may demise them againe and the Custome shall bee revived but by some men if by Escheat it bee in the Lords hands the Custome is extinct 8. et 9. Eliz. Ibidem Addington Lord of Harlow in Essex would encrease the Fines of his Coppy-hold Tenants which were prooved to bee certaine And it was holden that hee could not increase them and it shall be a good prescription to say alwaies ready to pay such a summe and no more 18. 19. Eliz. 4. Eliz. It was mooved by Manwood Sergeant if a Coppy-holder in Fee in right of his Wife doe Surrender the wife being not examined by the Steward but by some of the Tenants the Custome permitting it the Husband dyes Whether the Wife shall sue by plaint in Nature of a Cui in vita or may enter And by him shee may enter because it is no discontinuance for that it is a surrender to the Lord who hath the reversion for if a Tenant in Tayle enfeoffe him in the reversion it is no discontinuance but if she had been examined she should have bin barred for ever And Dier if a Coppy-holder in Tayle surrender to the Lord to the use of a stranger the Issue may bring a plaint in Nature of a Formdone in discender and purge the discontinuance for it is within the statute De donis Conditionalibus Lit Fo. 16. Com 233. 15 Hen. 8 Br. tit Tenant per Copie 24. And by Manwood no negative prescription may prevaile against a statute And the Common Law is no other but an ancient usage throughout all the Realme and a prime Custome may encounter with it but not with a statute And by Dier if after the Surrender the Lord admit the Wife againe yet shee shall be in by her Husband in construction of the Law Coppy-hold of inheritance discends unto two sisters by two venters none of them making entry and before the Court and admission one of them dyes her heire shall have the moyty and not the other sister by Dier chiefe Justice in the Chancery Also if a Coppy-holder in Taile Surrender to another in Fee who is admitted this is a discontinuance and so the Husband of his Wifes Coppy-hold And hâ— said that a remitter shall be of a Copy-hold as it shal be of a Freehold and inheritance at the common Law 13. et 14. Eliz. In the Duchâ—â— it was in question whether a Coppy-hold may be entayled or not And by Wray chiefe Justice and Manwood chiefe Baron the Tayle was not Fee simple at the Common Law if it did not appeare by the Custome and that may bee prooved by the Court Roles or by some other proofe that there is a recovery by plaint of Formedon or the Lands had descended according to Land in Tayle as possessio fratris shall not be of it or that that the Daughter shall not inherit before the sonne which is unckle to the same Egerton was of counsell with this case which was betweene Sherington and an other 22. Eliz. Hanchet and Rosse concerning land of Dicot in Stepping Hackney a Coppy-holder of inheritance dies the Lord grants the wardship of the Land during the minority of the heire to the Wife being sole shee takes a Husband and dyes It was demanded whether the Husband should have it or not And it seemed not but if it had beene a thing in which he had intrest to his owne use that he should have it as a Lease for yeares the executor shall have it without admittance of the Lord so the Husband shall have a Lease for yeares made to his Wife without admission By all the Justices 17. Eliz. If a Coppy-holder in Fee take an estate in Tayle by Charter-hold or take a Lease for yeares by Indenture his Coppy-hold is confounded 7. et 8. Eliz. by Harpour and others a Lessee for yeares of a Mannour may make Coppyes if the Custome be so to a man and his heires secundum consuetudinem c. for if the Coppy-holder in Fee dye his heire is in by descent and ought to be admitted or els he shall compell the Lord to admit him for for it is of necessity But Coppies for life or yeeres it is otherwise for by the death of the Tenant there is not any that can compell the Lord to make him a new Copy if he will not but hee may retaine the Land in his owne hands and therefore the grants of such Coppyes as are expired made by a lessee for yeares are void 26. ELIZ. FIrst Land Demiseable by Coppy in the time of Richard the second is perfect Coppy-hold so if it bee demised by Coppy 15. or 16 yeares Secondly If the Lord purchase the Coppihold of his Tenant money this is clearly a surrender and an extinguishment of the Coppy and it is not demiseable by Coppy after But if the Lord enter for forfeiture without presentment found that is demiseable by Coppy againe Thirdly If the Lord bring Trespas against a Coppy-holder who pleads that it is Free hold this is a Forfeiture and the Lord may enter Fourthly the Lord cannot seise because his Coppy-holder was sworne to give evidence against him for this is no forfeiture Fiftly if a Coppy-holder disseise his Lord of other Land that is not a forfeiture of the Coppy-hold Sixtly if a Coppy-holder dye without heire and the Lord enter by escheat this is demiseable by Coppy againe but if the Lord afterwards doe make a feoffment or suffer a recovery and after doe repurchase it it is not demiseable but if the Lord reverse the Judgement upon recovery by error attaint or deceit and hath restitution then it is demiseable by Coppy againe A disseisin doth not extinguish the Custome nor acts done by the disseisor Seventhly if a Coppy-holder suffer a recovery by prescript at common Law by collusion or make a Feofment or bargaine and sale and the Lord enters and makes a lease for yeares thereof the Land is not demiseable by Coppy againe Eighthly