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tinue their possession, and die seised, and the land descend to his heir, they have gained the right to the possession of the land against him that hath right till he recover it by fit action real at the common law. And if it be not sued for at the common law within threescore years after the disseisin or abatement committed, the right owner hath lost his right by that negligence.

And if a man hath divers children, and the elder, being a bastard, doth enter into the land and enjoyeth it quietly during his life, and dieth thereof so seised, his heirs shall hold the land against all the lawful children and their issues.

II. Descent of lands is where a man that hath land of inheritance dieth, not making any disposition of it, but leaveth it to go as the law appointeth: the law casteth it upon the heir. This is called a descent of land; but which shall be heir to inherit the land, upon whom the descent is to alight, is the question.

For which purpose the law of inheritance preferreth the child first before all others, and amongst children the male before the female, and amongst males the first born: if there be no children, then brothers: if no brothers, then sisters: if neither brothers nor sisters, then uncles, and for lack of uncles, aunts: if none of them, then cousins in the nearest degree of consanguinity :—with these three rules of diversities. Firstly, that the eldest male shall solely inherit; but if it come to females, then the females, being all equal in degree of nearness, shall inherit all together, and they are called parceners, and all they make but one heir. Secondly, that no brother or sister of the half-blood shall inherit to his brother or sister; but a child shall to his parents. As for example, if a man have two wives, and by either wife a son; the eldest son overliving the father is to be preferred to the inheritance being fee-simple; and if he enter and die without a child, the brother shall not be his heir, because he is of the half-blood to him, but the uncle of the eldest son or sister of the whole blood: but if the eldest brother had died in the life of the father, or had not entered after his father's death, then the youngest son should as heir to his father inherit the land his father had (although he were a child of the second wife), before any daughter of the first. Thirdly, that land purchased, either by such entry or conveyance, by the party himself that dieth is to be inherited, first, by the heirs of

his father's side, and if he have none of that part, then by the heirs of his mother's side; but lands descended to him from his father or mother are to go to that side only from which they came, and never to the other side.

These rules [of descent] before mentioned are to be understood of fee-simples, and [not of]1 entailed lands. And these rules are restrained by some particular customs of particular places: as namely, by a custom of Kent, that every male of equal degree of childhood, brotherhood, or kindred, shall inherit equally (as daughters shall, called parceners); and in many boroughs of England the custom alloweth the youngest son to inherit, and so the youngest brother. The custom of Kent is called gavelkind: the other in boroughs, is called BoroughEnglish.

And there is another note to be observed in fee-simple inheritance, and that is, that every beir having any fee-simple land or inheritance, by common law or custom of either gavelkind or Borough-English, is chargeable so far as the value thereof extendeth, with the binding acts of the ancestors from whom the inheritance descended. And these acts are called encumbrances; and the reason of this charge is, Qui sentit commodum, sentire debet et incommodum sive onus.

As for example, if a man do bind himself and his heirs in an obligation, or do covenant by writing for him and his heirs, or do grant an annuity for him and his heirs, or do make a warranty of land, binding him and his heirs to warrant: in all these cases the heir is chargeable after the death of his ancestor with this obligation, covenant, annuity, and warranty; yet with these three cautions. First, that the party must by special name bind him and his heirs, or covenant, grant, or warrant for him and his heirs; otherwise the heir is not to be touched. Secondly, that some action must be brought against the heir whilst the land or other inheritance resteth in him unaliened away for if the ancestor die, and the heir, before any action brought against him upon those bonds, covenants, or warranties, do alien away the land, then the heir is clean discharged of the burden; except the land were by fraud conveyed away of purpose to prevent the suit intended to be brought against him.

1 Harl. MS. omits the words in brackets in both places. In truth, neither reading of the passage gives a very good meaning. The rules require modification when applied to entails, but can hardly be said to be totally inapplicable.

Thirdly, that no heir is to be charged farther than the value of the land descended unto him from the same ancestor that made the instrument of charge; and that land also not to be sold outright, but to be kept in extent, at a yearly value, until the debt or damage be run out. Yet nevertheless if an heir that is sued upon such a debt of his ancestor do not deal clearly with the court when he is sued; that is, if he do not come in, and set down by way of confession the true quantity of his inheritance descended, and submit himself therefore as the law requireth, then that heir that otherwise demeaneth himself shall be charged of his own lands and goods, and of his money, for the deed of his ancestor. As for example; if a man bind himself and his heirs in an obligation of one hundred pounds, and dieth, leaving but ten acres of land to his heir; if his heir be sued upon the bond, and he cometh in, and denieth that he hath any lands by descent, and it is found against him by the verdict that he hath ten acres, this heir shall now be charged by his false plea of his own lands, goods, and body, to pay the hundred pounds, although the ten acres be not worth ten pounds.

III. Property by escheat is where the owner of the land dieth in possession without child or other heir; there the land, for lack of heir, is said to escheat to the lord of whom it is holden.

This lack of heir happeneth principally in two cases: the one where the land owner is a bastard; the other where he is attainted of felony or treason. For neither can a bastard have an heir, except it be his own child, nor a man attainted have any heir although it be his own child.

Upon attainder of treason the King is to have the land, although he be not the lord of whom it is holden, because it is a royal escheat. But for felony it is not so; for there the King is not to have the escheat except the land be holden of him: and yet, where the land is not holden of him, the King is to have the land for a year and a day next ensuing the judgment of attainder, with a liberty all that year to commit all manner of waste in houses, gardens, ponds, lands, and woods.

In these escheats two things are especially to be observed; the first is the tenure of the lands, because that directeth the person to whom the escheat belongeth, viz. the lord of whom the land is holden; the other is the manner of such attainder as draweth with it the escheat.

Concerning the tenure of lands, it is to be understood that all lands are holden of the crown, either mediately or immediately, and that the escheat appertaineth to the immediate lord, and not to the mediate. The reason why all land is holden of the crown, immediately or by mesne, is this:

The Conqueror got, by right of conquest, all the land of the realm into his own hands, in demesne, taking from every man all estate, tenure, property, and liberty of or in the same, except religious and church lands, and the lands of Kent: and still as he gave any of it out of his own hand, he did reserve some retribution of rents, or services, or both, to him and his heirs, which reservation is that which is called the tenure of the land.

In which reservation of tenure he had four institutions, exceeding politic, and suitable to the state of a conqueror.

First, seeing his people to be part Normans, brought by him, and part Saxons, found here, he bent himself to conjoin them in amity by marriages; and for that purpose ordained, that if those of his nobles, knights, and gentlemen, to whom he gave great rewards of lands, should die, leaving their heir within age, a male within twenty-one, a female within fourteen years, and unmarried, then the King should have the bestowing of such heirs in marriage, in such family and to such persons as he should think meet; which interest of marriage went still implied, and doth so at this day, in every tenure of land called knight-service.

The second was, to the end his people should still be conserved in warlike exercises and able for his defence, when he gave any good portion of land that might make the party of ability and strength he withal reserved this service, that the party and his heirs having this land should keep a horse of service continually, and serve himself upon him when the king went into war; or else, having impediment to excuse his own person, should find another to serve in his place; which service of horse and man is a part of the tenure called knight-service at this day. And the tenant himself being an infant, the King is to hold the land himself until his full age, finding him meat, drink, apparel, and other necessaries, and to find a man and horse with the overplus, to serve in the wars as the tenant himself should do if he were of full age. But if this inheritance descend upon a woman that cannot serve by her sex, yet the King is not to have the lands, she being of fourteen years of

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age, because she is then able to have a husband that may do the service in person.

The third institution was, that upon every gift of land he reserved as part of the tenure a vow and an oath to bind the party to his faith and loyalty: the vow was called homage, the oath fealty. Homage is to be done kneeling, holding his hands between the King's, saying, in the French tongue, "I become your man of life and limb, and of earthly honour." Fealty is to take an oath upon a book that he will be a faithful tenant to him, and do his service, and pay his rents according to his tenure.

The fourth institution was, that for recognition of the King's bounty by every heir succeeding his ancestor in these knightservice lands, the King should have primer seisin of the land, which is one year's value of the land; and until this be paid the King is to be in possession of the land, and then to deliver it to the heir; which continueth in use until this day, and is the very cause and business of suing livery, and is as well where the heir hath been in ward as otherwise.

These beforementioned be the rights of the tenure called knight-service in capite, which is as much as to say tenure de persona regis, and caput being the chiefest part of the person, it is called a tenure in capite, or in chief.

And it is also to be noted, that as this tenure in capite by knight-service generally was a great safety to the crown, so also the Conqueror instituted other tenures in capite necessary for his state. As namely, he gave divers lands to be holden of him by some special service about his person, or by bearing some special office in his house, or in the field, which have knight-service and more included in them; and these be called tenures by grand serjeanty. Also he provided, upon the gift of lands, to have a reservation of continual service of ploughing his land, repairing his houses, park-pales, castles, and the like; and sometimes to have a yearly provision of gloves, spurs, hawks, horses, hounds, and the like; which kind of reservations be called also tenures in chief, or in capite, of the King; but they are not by knight-service; because they require no personal service, but only such things to be done as the tenant may hire another to do, or provide for his money. And this tenure is called a tenure in capite by socage, the word soca signifying the plough. Howbeit, in this latter time the service of ploughing the land is turned into money rent, and so of harvest works;

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