Imágenes de páginas

before the same justice; then is the recognition and value, signed with the handwriting 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 endorsed on the backside thereof, is brought, together with the same paper that doth warrant it, into this office; and there first the doctor, confering together the paper and the writ, endorseth 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 endorseth 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 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 endorse 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 endorseth 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 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.

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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 endorse 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 endorse it thus, finis nullus. That done, it receiveth the names of the deputies, endorsed as before, and so passeth hence to the custos brevium as the rest. Upon every docket for license 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 subscribeth his name, the receiver taketh the money after the due rate and proportion; the second clerk entereth the docket 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 licenses, whose charge it is to procure the hand of the lord chancellor, and consequently the great seal for every such license or pardon. There yet remaineth untouched the order that is for the mean profits; for upon forfeiture which 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 license; 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 of 34 H. VIII. c. 5, but yet every way the yearly profits of the lands so aliened without license, 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.


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 favour

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

The discharge of him that holdeth not in


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. Secondlythat 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 ordinary, take it unkindly if they have not more than market measure.

About the discovery of the tenure in clerk. 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 hapchief when he 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 dominæ. 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

The person.

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numbers do exceed the very content and true which no yearly rent is reserved; or to grant a quantity of the lands themselves; so in some counties they are not much acquainted with admeasurement by acre; and thereby, for the most part, the writs of those shires and counties do contain twice or thrice so many acres more than the land hath. In some places the lands do lie open in common fields, and be not so valuable as if they were enclosed; and not only in one and the same shire, but also within the selfsame lordship, parish, or hamlet, lands have their divers degrees of value, through the diversity of their fertility or barrenness: wherein how great odds and variety there is, he shall soonest find, that will examine it by his own skill in whatsoever place that he knoweth best.

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

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

The manner of that assurance.

The manner and sorts of the conveyance of the land itself is likewise variable, and therefore deserveth a diverse considera- | tion 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 license or writ of entry, or where only a tenth part, as in a writ of covenant, is to be demanded.

A license 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 license, 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.

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1 E. 3., c. 12.

reversion, or remainder, expectant upon a lease,
or estate, that yieldeth no rent Sometimes the
land is given in mortgage only, with full inten.
tion 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 hap-
peneth 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 for-
feiture, for the alienation that cometh after it, the
party will offer to sue a pardon uncompelled be-
fore the time; in all which some mitigation of the
uttermost value may well and worthily be offered,
the rather for that the statute, 1 E. III.
c. 12, willeth, that in this service gene-
rally a reasonable fine shall be taken.
Lastly, error, misclaim, and forget- Error and mis-
fulness do now and then become suit- taking.
ors 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 trans-
ferred 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 license,
to him that without fraud or evil mind hath
slipped a term or two months, by forgetting to
purchase his license.

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, licenses, and pardons; as also to decipher the manifold slights and subtleties that are daily

offered to defraud her majesty in this her most an- the shipwreck of conscience, and with the irrecocient 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 with out the which both the former learning and discretion are no better than armata nequitia, and nothing else but detestable craft and double villainy. 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.

verable loss of their honesty and credit; and, therefore, since it appeareth which way each of these hath his reward, let us also examine that increase of benefit and gain, which is brought to her majesty by the invention of this office.

At the end of Hilary term, 1589, being the last open term of the lease of these profits granted to the late Earl of Leicester, which also was to expire at the feast of the Annunciation of the blessed Virgin Mary, 1590, then shortly to ensue; the officers above remembered thought it, for good causes, their duties to exhibit to the said right honourable the lord treasurer a special declaration of the yearly profits of these finances, paid into the hanaper during every of the six years before the beginning of the demise thereof made to that earl, conferred with the profits thereof that had been yearly taken during the last six years before the determination of the lease. By which it plainly appeared, that in all those first six years, next before the demise, there had been raised only 12,798/. 15s. 7d. ob.; and in these last six years of the demise the full sum of 32,160l. 4s. 10d. qu.; and so in all 19,3627.

For whereas alienations of lands, holden by the tenure of prerogative, be continually made, and that by many and divers ways, whereof all are not, at the first, to be found of record; and yet for the most part do come to be recorded in the end: the clerks of this office do, in the time of the vacation, repair to the rolls and records, as well of the Chancery and King's Bench, as of the Common | Pleas and Exchequer, whence they extract notes not only of inquisitions, common recoveries, and indentures of bargains and sales, that cannot but be of record, but also of such feoffments, ex-2s. 2d. ob. qu. more in these last, than in those changes, gifts by will, and indentures of covenants to raise uses of lands holden in chief, as are first made in the country without matter of record, and come at the length to be found by office or inquisition, that is of record; all which are digested into apt books, and are then sent to the remembrancer of the lord treasurer in the Exchequer, to the end that he may make and send out processes upon them, as he doth upon the extracts of the final concords of such lands, which the clerk of the fines doth convey unto him.

Thus it is plain, that this new order by many degrees excelleth the former usage; as also for the present advancement of her majesty's commodity, and for the future profit which must ensue by such discovery of tenures as were concealed before, by awakening of such as had taken a long sleep, and by reviving a great many that were more than half dead.

former six years. But because it may be said, that all this increase redounded to the gain of the fermor only, I must add, that during all the time of the demise, he answered 3001. rent, of yearly increase, above all that profit of 2,1337. 2s. 7d. qu., which had been yearly and casually made in the sixteen years one with another next before: the which, in the time of fourteen years, for so long these profits have been demised by three several leases, did bring 4,2001. to her majesty's coffers. I say yearly; which may seem strange, that a casual and thereby uncertain profit should yearly be all one; but indeed such was the wondrous handling thereof, that the profit was yearly neither more nor less to her majesty, howsoever it might casually be more or less to him that did receive it. For the writs of covenant answered year by year 1,1527. 16s. 8d., the licenses and pardons 9341. 3s. 11d. qu., and the mean rates 461. 2s.; in all 2,1337. 2s. 7d., qu., without increase or diminution.

Moreover, whereas her majesty did, after the death of the earl, buy of the countess, being his executrix, the remnant of the last term of three

The fees or allowances, that are termly given to these deputies, receiver, and clerks, for recompense of these their pains, I do purposely pretermit; because they be not certain, but arbitrary, at the good pleasure of those honourable persons that have the dispensation of the same: how beit, hi-years in those profits, whereof there were only therto each deputy and the receiver hath received twenty pounds for his travel in each term, only the doctor hath not allowance of any sum in gross, but is altogether paid in petty fees, by the party or suitor; and the clerks are partly rewarded by that mean also, for their entries, discharges, and some other writings, besides that termly fee which they are allowed.

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then six terms, that is, about one year and a half, to come, paying for it the sum of 3,000%. her majesty did clearly gain by that bargain the sum of 1,1737. 15s. 8d. ob. above the said 3,000l. above the rent of 3,6497. 13s. 10d. ob. qu. proportionably due for that time, and above all fees and other reprises. Neither hath the benefit of this increase to her majesty been contained within the bounds of this small office, but hath swelled over the banks thereof, and displayed itself apparently, as well in the hanaper, by the fees of the great seal.


majesty at all, or but partly holden in chief; and not doubting to improve her majesty's revenue therein, and that without loss to any, either private person or public officer, if the same might be managed by them jointly with the rest whereof they had the charge; they found, by search in the hanaper, that the fruits of those writs of entry had not, one year with another, in the ten years next before, exceeded 4007. by the year. Whereupon they took hold of the occasion then present, for the renewing of the lease of the former profits; and moved the lord treasurer, and Sir John Fortescue, under treasurer and chancellor of the Exchequer, to join the same in one and the same demise, and to yield unto her majesty 5007. by year therefor; which is 1007. yearly of increase. The which desire being by them recommended to her majesty, it liked her forthwith to include the same, and all the former demised profits, within one entire lease, for seven years, to begin at the said feast of the Annunciation, 1597, under the yearly rent of 2,9331. 28. 7d. qu. Since which time hitherto, I mean to the end of Michaelmas term, 1598, not only the proportion of the said increased 100%., but almost of one other 100%. also, hath been answered to her majesty's coffers, for those recoveries so drawn into the demise now continuing.

which yielding 20s. 4d. towards her majesty for ¦ ing of common recoveries, either not holden of her every license and pardon, was estimated to advantage her highness during those fourteen years, the sum of 3,721/. 6s. ob. qu. more than without that demise she was like to have found. As also in the court of wards and liveries, and in the Exchequer itself: where, by reason of the tenures in chief revived through the only labours of these officers, both the sums for respect of homage be increased, and the profits of wardships, primer seisins, ouster le maine, and liveries, cannot but be much advanced. And so her majesty's self hath, in this particular, gained the full sum of 8,7361. 5s. 5d. ob. qu., not comprising those profits in the Exchequer and court of wards, the very certainty whereof lieth not in the knowledge of these officers, nor accounting any part of that great benefit which the earl and his executrix have made by the demises: which, one year with another, during all the thirteen years and a half, I suppose to have been 2,2637. or thereabouts; and so in all about 27,1587. above all his costs and expenses. The which, albeit I do here report only for the justification of the service in this place; yet who cannot but see withal, how much the royal revenues might be advanced, if but the like good endeavours were showed for her majesty in the rest of her finances, as have been found in this office for the commodity of this one subject? The views of all which matter being presented to the most wise and princely consideration of her majesty, she was pleased to demise these profits and fines for other five years, to begin at the feast of the Annunciation, 1590, in the thirty-second year of her reign, for the yearly rent formerly reserved upon the leases of the earl; within the compass of which five years, expired at the Annunciation, 1595, there was advanced to her majesty's benefit, by this service, the whole sum of 13,0137. 14s. Id. qu. beyond the ancient yearly revenues, which, before any lease, were usually made of these finances. To which, if there be added 5,7001. for the gain given to her majesty by the yearly receipt of 3007. in rent, from the first demise to the earl, until the time of his death, together with the sum of 1,1731. 15s. 8d. ob., clearly won in those six terms bought of the countess; then the whole commodity, from the first institution of this office, till the end of these last five years expired at the Annunciation, 1595, shall appear to be 19,8871. 9s. 9d. ob. qu. To the which sum also if 28,550l. 15s. 6d. ob. qu., which the earl and the countess levied hereby, be likewise adjoined, then the whole profit taken in these nineteen years, that is, from the first lease, to the end of the last, for her majesty, the earl, and the countess, will amount unto 48,4381. 5s. 4d. This labour hitherto thus luckily succeeding, the deputies in this office finding by daily proof, that it was wearisome to the subject to travel to divers places, and through sundry hands, for the pursu

Thus I have opened both the first plotting, the especial practice, and the consequent profit arising by these officers; and now if I should be demanded, whether this increase of profit were likely to stand without fall, or to be yet amended or made more? I would answer, that if some few things were provided, and some others prevented, it is probable enough in mine own opinion, that the profit should rather receive accession than decay.

The things that I wish to be provided are these: first, that by the diligence of these officers, assisted with such other as can bring good help thereunto, a general and careful collection be made of all the tenures in chief; and that the same be digested by way of alphabet into apt volumes, for every part, or shire, of the realm. Then that every office, or inquisition, that findeth any tenure in chief, shall express the true quantities of the lands so holden, even as in ancient time it was wont to be done by way of admeasurement, after the manner of a perfect extent or survey; whereby all the parts of the tenancy in chief may be wholly brought to light, howsoever in process of time it hath been, or shall be torn and dismembered. For prevention, I wish likewise, first, that some good means were devised for the restraint of making these inordinate and covinous leases of lands, holden in chief, for hundreds or thousands of years, now grown so bold, that they dare show themselves in fines, levied upon the open stage of the Common Pleas; by which one man taketh

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