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part of her prerogative, or the respect of private | that he found great favour there by this statute, to lucre, or both, were the first motives thus to dis- be reasonably fined for his trespass. sever this member, and thereby as it were to mayhem the chancery, it is neither my part nor purpose to dispute.
The first part
First, that these fines, exacted for such alienations, be not only of the greatest antiquity, but are also good and reasonable in themselves; secondly, that the modern and present exercise of this office is more commendable than was the former usage; and, lastly, that as her majesty hath received great profit thereby, so may she, by a moderate hand, from time to time reap the like, and that without just grief to any of her subjects. As the lands that are to be aliened, of this treatise. be either immediately holden in chief, or not so holden of the queen, so be these fines or sums respectively of two sundry sorts; for upon each alienation of lands, immediately held of her majesty in chief, the fine is rated here, either upon the license, before the alienation is made, or else upon the pardon when it is made without license. But generally, for every final concord of lands to be levied upon a writ of covenant, warrantia chartæ, or other writ, upon which it may be orderly levied, the sum is rated here upon the original writ, whether the lands be held of the queen, or of any other person; if at the least the lands be of such value, as they may yield the due fine. And likewise for every writ of entry, whereupon a common recovery is to be suffered, the queen's fine is to be rated there upon the writ original, if the lands comprised therein be held of her by the tenure of her prerogative, that is to say, in chief, or of her royal person.
alien without license.
So that I am hereby enforced, for tenant in chief avoiding of confusion, to speak severally, first of the fines for alienation of lands held in chief, and then of the fines upon the suing forth of writs original. That the king's tenant in chief could not in ancient time alien his tenancy without the king's license,
And although we read an opinion 20 lib. Assis. parl. 17, et 26, Assis. parl. 37, which also is repeated by Hankf. 14 H. IV. fol. 3, in which year Magna Charta was confirmed by him, the king's tenant in chief might as freely alien his lands without license, as might the tenant of any other lord; yet, forasmuch as it appeareth not by what statute the law was then changed, I had rather believe, with old Judge Thorpe and late Justice Stanford, that even at the common law, which is as much as to say, as from the beginning of our tenures, or from the beginning of the English monarchy, it was accounted an offence in the king's tenant in chief, to alien without the royal and express license.
And I am sure, that not only upon the entering, or recording, of such a fine for alienation, it is wont to be said pro transgressione in hac parte facta; but that you may also read amongst the records in the Tower, Fines 6 Hen. Reg. 3, Memb. 4, a precedent of a capias in manum regis terras alienatas sine licentia regis, and that, namely, of the manor of Coselescombe in Kent, whereof Robert Cesterton was then the king's tenant in chief. But were it that, as they say, this began first 20 H. III., yet 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 Edward I., who may be therefore worthily called, our English Solon or Lycurgus.
The fine for alienation is moderate.
Now, therefore, to proceed to the reason and equity of exacting these fines for such alienations, it standeth thus: when the king, whom our law understandeth to have been at the first both the supreme 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 it appeareth by the statute, 1 E. III. | his tenant and patentee shall dispose of the same cap. 12, where it is thus written: without his kingly assent first obtained, the lands "Whereas divers do complain that the lands shall revert to the king, or to his successors, that holden of the king in chief, and aliened without first gave them. And that also was the very license, have been seized into the king's hands cause, as I take it, why they were anciently for such alienation, and holden as forfeit: the seized into the king's hands, as forfeited by such king shall not hold them as forfeit in such a case, alienation, until the making of the said statute, but granteth that, upon such alienations, there 1 E. III., which did qualify that rigour of the shall be reasonable fines taken in the chancery former law. by due process.
1 E. III. c. 12.
Neither ought this to seem strange in the case So that it is hereby proved, that before this sta- of the king, when every common subject, being tute, the offence of such alienation, without lord of lands which another holdeth of him, ought license, was taken to be so great, that the tenant not only to have notice given unto him upon every did forfeit the land thereby; and, consequently, alienation of his tenant, but shall, by the like im
plied 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 license. 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 forever 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 license?
of fines upon
Touching the king's fines accustomand moderation ably paid for the purchasing of writs writs original. 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 means each man might boldly both crave and have law for the present, and find memorials also to maintain his right and recovery, forever 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.
Litt. 34 H. 6. fol. 38.
And therefore it was well said by 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. 6, 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, and 7, regis Johannis, fines were diversely paid to the king, upon the purchasing 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 proVOL. III-41
cured 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 is set forth 20 R. 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 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, in goods the two hundredth part of the thing that is demanded by the writ.
the like import, seems to be omitted here.
Neither has this office of ours* originally to meddle with the fines of any some word of 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 license 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.
Before the institution of this ferm and office no writ of covenant for the part of this levying any final concord, no writ of entry for the suffering of any common recovery of lands holden in chief, no docket for license to alien, nor warrant for pardon of alienation made, could be purchased and gotten without an oath
All fines upon
called an affidavit, therein first taken either before some justices of assize, oath. 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 recognition 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 Tothill 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 in
Icreased 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 raiseth 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 selfsame thing is, moreover, that I may shortly deliver it by the way, not only a singular comfort to 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 distributors of the same; and, as that most honourable lord and reverend sage counsellor, the late Lord Burleigh,* late lord treasurer, said to myself, to ascertain, the deal it out with wisdom and good writing. dexterity towards all the sorts of her loving subjects.
But now that it may yet more parti- The part of cularly appear what is the sum of this cach officer. new building, and by what joints and sinews the same is raised and knit together, I must let you know, that besides the fermour's deputies, which, at this day, be three in number, and besides the dector of whom I spake, there is also a receiver, who alone handleth the moneys, and three clerks, that be employed severally, as anon you shall perceive; and by these persons the whole proceeding in this charge is thus performed.
If the recognition or acknowledg- Proceeding ment of a final concord upon any writ upon fines. 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 inade
before the same justice; then is the recognition | made either before some such justice, or before and value, signed with the handwriting of that the said doctor, that the lands, comprised in the justice, carried by the cursitor in chancery for writ, be not worth above forty shillings by the that shire where those lands do lie, and by him year, to be taken. And albeit now here can be is a writ of covenant thereupon drawn and no composition, since the queen is to have no fine engrossed in parchment; which, having the same at all for unfinable writs, yet doth the doctor envalue endorsed on the backside thereof, is brought, dorse his name, and cause the youngest, or third together with the same paper that doth warrant clerk, both to make entry of the writ into a third it, into this office; and there first the doctor, con- book, purposely kept for those only writs, and ferring together the paper and the writ, endorseth also to endorse it thus, finis nullus. That done, his name upon that writ, close underneath the it receiveth the names of the deputies, endorsed value thereof; then, forasmuch as the valuation as before, and so passeth hence to the custos brevium thereof is already made, that writ is delivered to as the rest. Upon every docket for license of the receiver, who taketh the sum of money that alienation, or warrant for pardon of alienation, the is due, after the rate of that yearly value, and party is likewise at liberty either to compound endorseth the payment thereof upon the same writ with the deputies, or to make affidavit touching accordingly this done, the same writ is brought the yearly value; which being known once and to the second clerk, who entereth it into a several set down, the doctor subscribeth his name, the book, kept only for final writs of covenant, to- receiver taketh the money after the due rate and gether with the yearly value, and the rate of the proportion; the second clerk entereth the docket money paid, with the name of the party that made or warrant into the book that is proper for them, the affidavit, and the justice that took it: and at and for the writs of entry, with a notice also, the foot of that writ maketh a secret mark of his whether it passeth by oath or by composition; said entry lastly, that writ is delivered to the then do the deputies sign it with their hands, and deputies, who seeing that all the premises be so it is conveyed to the deputy of Mr. Bacon, orderly performed, do also endorse their own clerk of the licenses, whose charge it is to procure names upon the same writ, for testimony of the the hand of the lord chancellor, and consequently money received. Thus passeth it from this office the great seal for every such license or pardon. to the custos brevium, from him to the queen's There yet remaineth untouched the silver, then to the chirographer to be engrossed, order that is for the mean profits; for upon forfeiture and so to be proclaimed in the court. But if no which also there is an agreement made affidavit be already made touching the value, then here when it is discovered that any alienation is the writ of covenant brought first to the depu- hath been made of lands holden in chief, without ties, ready drawn and engrossed; and then is the the queen's license; and albeit that in the other value made either by composition had with them cases, one whole year's profit be commonly without any oath, or else by oath taken before the payable upon such a pardon, yet, where the doctor; if by composition, then one of the depu- alienation is made by devise in a last will only, ties setteth down the yearly value, so agreed the third part of these profits is there demandable. upon, at the foot of the backside of the writ; by special provision thereof made in the statute of which value the doctor causeth one of the clerks 34 H. VIII. c. 5, but yet every way the to write on the top of the backside of the writ, yearly profits of the lands so aliened as the cursitor did in the former, and after that without license, and lost even from the time of the doctor endorseth his own name underneath it, the writ of scire facias, or inquisition thereupon and so passeth it through the hands of the re- returned into the Exchequer, until the time that ceiver, of the clerk that maketh the entry, and of the party shall come hither to sue forth his charter the deputies, as the former writ did. But if the of pardon for that offence. valuation be made by oath taken before the doctor, then causeth he the clerk to endorse 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.
of mean profits.
34 H. 8, 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 adjudged 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 show favou
Policy for avoiding cor ruption.
and merciful dealing; because it many times hap- at the least, and sometimes twice so much, before peneth, that either through the remote dwelling he could find the means to be delivered. of the party from the lands, or by the negligence or evil practice of under-sheriffs and their bailiffs, the owner hath incurred the forfeiture of eight or ten years' whole profits of his lands, before he cometh to the knowledge of the process that runneth against him; other times an alienation made without license is discovered when the present owner of the lands is altogether ignorant that his lands be holden in chief at all: other times, also, some man concludeth himself to have such a tenure by his own suing forth of a special writ of livery, or by causeless procuring a license, or pardon, for his alienation, when in truth the lands be not either holden at all of her majesty, or not holden in chief, but by a mean tenure in soccage, or by knight's service at the most. In which cases, and the like, if the extremity should be rigorously urged and taken, especially where the years be many, the party should be driven to his utter overthrow, to make half a purchase, or more, of his own proper land and living.
The chief clerk.
The discharge of him that holdeth not in chief when he
About the discovery of the tenure in chief, following of process for such alienation made, as also about the calling upon sheriffs for their accounts, and the bringing in of parties by seisure of their lands, therefore the first and principal clerk in this office, of whom I had not before any cause to speak, is chiefly and in a manner wholly occupied and set on work. Now, if it do at any time hapis sued errone. pen, as, notwithstanding the best endeavour, it may and doth happen, that the process, howsoever colourably awarded, hath not hit the very mark whereat it was directed, but haply calleth upon some man who is not of right to be charged with the tenure in chief, that is objected against; then is he, upon oath and other good evidence, to receive his discharge under the hands of the deputies, but with a quousque, and with salvo jure domina. Usage and deceivable manner of awarding process cannot be avoided, especially where a man, having in some one place both lands holden in chief, and other lands not so holden, alieneth the laws not holden: seeing that it cannot appear by record nor otherwise, without the express declaration and evidences of the party himself, whether they be the same lands that be holden, or others. And, therefore, albeit the party grieved thereby may have some reason to complain of an untrue charge, yet may he not well call it an unjust vexation; but ought rather to look upon that ease, which in this kind of proceeding he hath found, where, besides his labour, he is not to expend above two-and-twenty shillings in the whole charge, in comparison of that toil, cost, and care, which he in the case was wont to sustain by the writ of certiorari in the Exchequer; wherein, besides all his labour, it did cost him fifty shillings
Thus have I run through the whole order of this practice, in the open time of the term; and that the more particularly and at full, to the end that thereby these things ensuing might the more fully appear, and plainly bewray themselves: first, that this present manner of exercising of this office hath so many testimonies, interchangeable warrants. and counter-rolments, whereof each, running through the hands and resting in the power of so many several persons, is sufficient to argue and convince all manner of falsehood; so as, with a general conspiracy of all those offices together, it is almost impossible to contrive any deceit therein: a right ancient and sound policy, whereupon both the order of the accounts in the Exchequer, and of the affairs of her majesty's own household, are so grounded and built, that the infection of an evil mind in some one or twain, cannot do any great harm, unless the rest of the company be also poisoned by their contagion. And, surely, as Cicero said, Nullum est tam desperatum collegium, in quo non unus e multis sit sana mente præditus, Secondly, that here is great use both of discretion, learning, and integrity; of discretion, I say, for examining the degrees of favour, which ought to Inequality of be imparted diversely, and for discern- rates justifiable. ing the valuations of lands, not in one place or shire, but in each county and corner of the realm; and that not of one sort or quality, but of every kind, nature, and degree: for a taste whereof, and to the end that all due quality of rates be not suddenly charged with infidelity, and condemned for corruption; it is note-worthy, that favour is here sometimes right worthily bestowed, not only in a general regard of the 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 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 tenure, without suing out of any license. 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 ordi nary, take it unkindly if they have not more than market measure.
Again, the consideration of the place or county where the lands do lie, may justly cause the rate or valuation to be the more or less; for as the writs too commonly report the land by numbers of acres, and as it is allowable, for the eschewing of some dangers, that those