THE USE OF THE LAW - BY SIR FRANCIS BACON THE USE OF THE LAW by Sir Francis Bacon Transcribed by Thomas Walter Duda Source: Montagu, Basil, Esq., _The Works of Francis Bacon_, Vol. 3. Philadelphia: Carey and Hart, 1841. 3 Vols. pp. 247-266. Introductory Notes Sir Francis Bacon (1561-1626), one of the great intellects produced by England, hardly needs an introduction. For purposes of historical and genealogical research, what is important is that he held, under King James I (he of the Virginia charters), the posts of Solicitor General, Attorney General and Lord Chancellor (from 1618 to 1621), in which last post he was the chief law officer of the realm. Bacon was, therefore, eminently qualified to expound on the laws of England. It should be observed that the statutes of which he writes were replicated in early colonial Virginia, with variances increasingly added to accommodate the colonial situation. The tract was published posthumously in London in 1630 by John More. It was later published as part of a collection entitled _The Elements of the Common Laws of England_, the other part being "The Maxims of the Law." To those who are familiar with the bibliography of Bacon's works, and might question the statement that the source is in three volumes, whereas the typical bibliography says that Montagu's edition is in fifteen volumes, the transcriber will only note that he owns a copy of the source, which states explicitly on the title page of each volume that it is a three volume set. The word 'tract' above is used advisedly; by no means should this article be considered an encyclopedic study of the laws of England. Nevertheless, it does present a cogent synposis of the workings of the English legal system during Bacon's time. The author divides his review of the history and practical application of law into three main sections: (I.) Criminal law, (II.) Estate law, and (III.) Personal property law. In the section on estate law, Bacon identifies four principal ways in which land could be transferred (not to be confused with conveyances), numbering each method in the heading. However, in the explanatory text that follows the heading, only the first method is numbered. In this transcription, each method has been numbered. Although Bacon's writing is lucid, the use of a good law dictionary is highly recommended. Yet, no definition illustrates the twists and turns of English law as well as Bacon does. A Table of Contents has been included by the transcriber. Because the legal doctrine of Attainder, a type of escheat or forfeiture of lands and goods due to felony or treason, pervades all three sections and colors the interpretation of the relevant laws, the reader is encouraged to study each section. The text was published two columns per page. In this transcription, the page numbers are followed by a letter, either 'A' or 'B', to indicate the active column. 'A' is the lefthand column and 'B' the righthand. Footnotes in the printed version were identified with '*', '+', etc. In this transcription, they have been replaced with the modern [1], [2], etc. TWD - 28 Apr 1998 TABLE OF CONTENTS Preamble. The three uses of law. .......................... 247A I. Criminal Law .......................................... 247A II. Estate Law Entry (untitled lands) .............................. 253B Inheritance (see also Types of Conveyances: Will) ... 254A Escheat Knight's service (and in capite) ................ 255B Soc[c]age (and in capite) ....................... 256A Alienation ...................................... 256B Copyhold ........................................ 257A Conveyances Types of Estates: Estates for years ............................... 259A Estates for lives (freeholds) ................... 259A Entail .......................................... 259B Fee simple ...................................... 260B Types of Conveyance: Feoffment ....................................... 261A Fine ............................................ 261A Recovery ........................................ 261A Bargain and sale ................................ 262A Seised to use ................................... 262A Will ............................................ 262B III. Personal Property Law Types of Transfer: Gift .............................................. 264A Sale .............................................. 264A Theft ............................................. 264A Waving ............................................ 264B Straying .......................................... 265A Shipwreck ......................................... 265A Executorship ...................................... 265A Administration .................................... 265B Legacy ............................................ 266B --------------------- 247A THE USE OF THE LAW. The USE OF THE LAW, provided for PRESERVATION OF OUR PERSONS, GOODS, AND GOOD NAMES. according to the PRACTICE OF THE LAWS AND CUSTOMS Of THIS LAND. -------------------- THE use of the law consisteth principally in these three things: I. To secure men's persons from death and violence, II. To dispose the property of their goods and lands. III. For preservation of their good names from shame and infamy. For safety of persons, the law provideth that any man standing in fear of another, may take his oath before a justice of peace, that he standeth in fear of his life, and the justice shall compel the other to be bound with sureties to keep the peace. THE USE OF THE LAW. 247B If any man beat, wound, or maim another, or give false scandalous words that may touch his credit, the law giveth thereupon an action of the case, for the slander of his good name; and an action of battery, or an appeal of maim, by which recompense shall be recovered, to the value of the hurt, damage, or danger. If any man kill another with malice, the law giveth an appeal to the wife of the dead, if he had any, or to the next of kin that is heir in default of a wife, by which appeal the defendant convicted is to suffer death, and to lose all his lands and goods. But if the 248A THE USE OF THE LAW. wife or heir will not sue or be compounded withal, yet the king is to punish the offence by indictment or presentment of a lawful inquest and trial of the offenders before competent judges; whereupon being found guilty, he is to suffer death, and to lose his lands and goods. If one kill another upon a sudden quarrel, this is manslaughter, for which the offender must die, except he can read; and if he can read, yet must lose his goods, but no lands. And if a man kill another in his own defence, he shall not lose his life, nor his lands, but he must lose his goods, except the party slain did first assault him, to kill, rob, or trouble him by the highway side, or in his own house, and then he shall lose nothing. And if a man kill himself, all his goods and chattels are forfeited, but no lands. If a man kill another by misfortune, as shooting an arrow at a butt or mark, or casting a stone over a house, or the like, this is loss of his goods and chattels, but not of his lands, nor life. If a horse, or cart, or a beast, or any other thing do kill a man, the horse, beast, or other thing is forfeited to the crown, and is called a deodand, and usually granted and allowed by the king to the Bishop Almner, as goods are of those that kill themselves. The cutting out of a man's tongue, or putting out his eyes maliciously, is felony; for which the offender is to suffer death, and lose his lands and goods. But for that all punishment is for example's sake; it is good to see the means whereby offenders are drawn to their punishment; and first for the matter of the peace. THE ancient laws of England planted here by the conqueror were, that there should be officers of two sorts in all the parts of this realm to preserve the peace: -- 1. Constabularii ) ) Pacis. 2. Conservatores ) The office of the constable was, to arrest the parties that he had seen breaking the peace, or in fury ready to break the peace, or was truly informed by others, or by their own confession, that they had freshly broken the peace; which persons he might imprison in the stocks, or in his own house, as his or their quality required, until they had become bounden with sureties to keep the peace; which obligation from thenceforth was to be sealed and delivered to the constable to the use of the king. And that the constable was to send to the king's Exchequer or THE USE OF THE LAW. 248B Chancery, from whence process should be awarded to levy the debt, if the peace were broken. But the constable could not arrest any, nor make any put in bond upon complaint of threatening only, except they had seen them breaking the peace, or had come freshly after the peace was broken. Also, these constables should keep watch about the town for the apprehension of rogues and vagabonds, and night-walkers, and eves-droppers, scouts, and such like, and such as go armed. And they ought likewise to raise hue and cry against murderers, manslayers, thieves, and rogues. Of this office of constable there were high constables, two of every hundred; petty constables, one in every village; they were, in ancient time, all appointed by the sheriff of the shire yearly, in his court called the Sheriff's Tourn, and there they received their oath. But at this day they are appointed either in the law-day of that product where they serve, or else by the high constable in the sessions of the peace. The sheriff's Tourn is a court very ancient, incident to his office. At the first, it was erected by the conqueror, and called the King's Bench, appointing men studied in the knowledge of the laws to execute justice, as substitutes to him in his name, which men are to be named, Justiciarii ad placita coram Rege assignati. One of them being Capitalis Justiciarius called to his fellows; the rest in number as pleaseth the king, of late but three Justiciarii, holden by patent. In this court every man above twelve years of age was to take his oath of allegiance to the king, if he were bound, then his lord to answer for him. In this court the constables were appointed and sworn; breakers of the peace punished by fine and imprisonment, the parties beaten or hurt recompensed upon complaints of damages; all appeals of murder, maim, robbery, decided; contempts against the crown, public annoyances against the people, treasons and felonies, and all other matters of wrong, betwixt party and party, for lands and goods. But the king seeing the realm grow daily more and more populous, and that this one court could not dispatch all, did first ordain that his marshal should keep a court for controversies arising within the virge; which is within twelve miles of the chiefest tunnel of the court, which did but ease the King's Bench in matters only concerning debts, covenants, and such like, of these of the king's household only, never dealing in breaches of the peace, or concerning the crown by any other persons, or any pleas of lands. Insomuch as the king, for further ease, having divided his kingdom into counties, and committing the charge of every county to a 249A THE USE OF THE LAW. lord or earl, did direct that those earls, within their limits, should look to the matter of the peace, and take charge of the constables, and reform public annoyances, and swear the people to the crown, and take pledges of the freemen for their allegiance, for which purpose the county did once every year keep a court, called the Sheriff's Tourn; at which all the county (except women, clergy, children under twelve, and not aged above sixty) did appear to give or renew their pledges of allegiance. And the court was called Curia Franci Plegii, a view of the Pledges of Freemen; or, Turnus Comitatus. At which meeting or court there fell, by occasion of great assemblies, much bloodshed, scarcity of victuals, mutinies, and the like mischiefs which are incident to the congregations of people, by which the king was moved to allow a subdivision of every county into hundreds, and every hundred to have a court, whereunto the people of every hundred should be assembled twice a year for survey of pledges, and use of that justice which was formerly executed in that grand court for the county; and the count or earl appointed a bailiff under him to keep the hundred court. But in the end, the kings of this realm found it necessary to have all execution of justice immediately from themselves, by such as were more bound than earls to that service, and readily subject to correction for their negligence or abuse; and therefore took to themselves the appointing of a sheriff yearly in every county, calling them vicecomites, and to them directed such writs and precepts for executing justice in the county as fell out needful to have been despatched, committing to the sheriff custodium comitatus; by which the earls were spared of their toils and labors, and that was laid upon the sheriffs. So as now the sheriff doth all the king's business in the county, and that is now called the Sheriff's Tourn; that is to say, he is judge of this grand court for the county, and also of all hundred courts not given away from the crown. He hath another court, called the County Court, belonging to his office, wherein men may sue monthly for any debt or damages under forty pounds, and may have writs for to replevy their cattle distrained and impounded by others, and there try the cause of their distress; and by a writ called Justicies, a man may sue for any sum; and in this court the sheriff, by a writ called an exigent, doth proclaim men sued in courts above to render their bodies, or else they be outlawed. This sheriff doth serve the king's writs of process, be they summons, attachments to compel men to answer to the law, THE USE OF THE LAW. 249B and all writs of execution of the law, according to judgments of superior court, for taking of men's goods, lands, or bodies, as the cause requireth. The hundred courts were most of them granted to religious men, noblemen, and others of great place. And also many men of good quality have attained by charter, and some by usage, within manors of their own liberty, of keeping law days, and to use there justice appertaining to a law day. Whosoever is lord of the hundred court is to appoint two high constables of the hundred, and also is to appoint in every village a petty constable, with a tithing man to attend in his absence, and to be at his commandment when he is present in all services of his office for his assistance. There have been by use and statute law (besides surveying of the pledges of freemen, and giving the oath of allegiance, and making constables) many additions of powers and authority given to the stewards of leets and law-days to be put in use in their courts; as for example, they may punish innkeepers, victuallers, bakers, butchers, poulterers, fishmongers, and tradesmen of all sorts selling with under weights or measures, or at excessive prices, or things unwholesome, or ill made in deceit of the people. They may punish those that do stop, straiten, or annoy the highways, or do not, according to the provision enacted, repair or amend them, or divert water courses, or destroy fry of fish, or use engines or nets to take deer, conies, pheasants, or partridges, or build pigeon houses, except he be lord of the manor, or parson of the church. They may also take presentment upon oath of the twelve sworn jury before them of all felonies; but they cannot try the malefactors, only they must by indenture deliver over those presentments of felony to the judges, when they come their circuits into that county. All those courts before mentioned are in use, and exercised as law at this day, concerning the sheriff's law days and leets, and the offices of high constables, petty constables and tithing men; howbeit, with some further additions by statute laws, laying charge upon them for taxation for poor, for soldiers, and the like, and dealing without corruption, and the like. Conservators of the peace were in ancient times certain, which were assigned by the king to see the peace maintained, and they were called to the office by the king's writ, to continue for term of their lives, or at the king's pleasure. For this service, choice was made of the best men of calling in the country, and but few in the shire. They might bind any man to keep the peace, and to good behaviour, by recognisance to the king, with 250A THE USE OF THE LAW. sureties; and they might by warrant send for the party, directing their warrant to the sheriff or constable, as they please, to arrest the party, and bring him before them. This they used to do when complaint was made by any that he stood in fear of another, and so took his oath; or else, where the conservator himself did, without oath or complaint, see the disposition of any man inclined to quarrel and breach of the peace; or to misbehave himself in some outrageous manner of force or fraud, there, by his own discretion, he might send for such a fellow, and make him find sureties of the peace, or of his good behaviour, as he should see cause; or else commit him to the goal if he refused. The judges of either bench in Westminster, barons of the Exchequer, master of the rolls, and justices in eyre and assizes in their circuits, were all, without writ, conservators of the peace in all shires of England, and continue to this day. But now at this day conservators of the peace are out of use, and in lieu of them there are ordained justices of peace, assigned by the king's commissions in every county, which are moveable at the king's pleasure; but the power of placing and displacing justices of the peace is by use delegated from the king to the chancellor. That there should be justices of the peace by commissions, it was first enacted by a statute made 1 Edward III, and their authority augmented by many statutes made since in every king's reign. They are appointed to keep four sessions every year; that is every quarter one. These sessions are a sitting of the justices to despatch the affairs of their commissions. They have power to hear and determine in their sessions all felonies, breaches of the peace, contempts, and trespasses, so far as to fine the offender to the crown, but not to award recompense to the party grieved. They are to suppress riots and tumults, to restore possessions forcibly taken away, to examine all felons apprehended and brought before them; to see impotent poor people, or maimed soldiers provided for according to the laws, and rogues, vagabonds, and beggars punished. They are both to license and suppress alehouses, badgers of corn and victuals, and to punish forestallers, regrators, and engrossers. Through these in effect run all the county services to the crown, as taxations of subsidies, mustering men, arming them, and levying forces, that is done by a special commission or precept from the king. Any of these justices, by oath taken by a man that he standeth in fear that another THE USE OF THE LAW. 250B man will beat him, or kill him, or burn his house, are to send for the party by warrant of attachment, directed to the sheriff or constable, and then to bind the party with sureties by recognisance to the king to keep the peace, and also to appear at the next sessions of the peace; at which next sessions, when every justice of peace hath therein delivered all their recognisances so taken, then the parties are called, and the cause of binding to the peace examined, and both parties being heard, the whole bench is to determine as they see cause, either to continue the party so bound, or else to discharge him. The justices of peace in their sessions are attended by the constables and bailiffs of all hundreds and liberties within the county, and by the sheriff or his deputy, to be employed as occasion shall serve in executing the precepts and directions of the court. They proceed in this sort; the sheriff doth summon twenty-four freeholders, discreet men of the said county, whereof some sixteen are selected and sworn, and have their charge to serve as the grand jury, the party indicted is to traverse the indictment, or else to confess it, and so submit himself to be fined as the court shall think meet, (regard had to the offence,) except the punishment be certainly appointed, as often it is, by special statutes. The justices of peace are many in every county, and to them are brought all traitors, felons, and other malefactors of any sort upon their first apprehension, and that justice to whom they are brought examineth them, and heareth their accusations, but judgeth not upon it; only if he find the suspicion but light, then he taketh bond, with sureties of the accused, to appear either at the next assizes, if it be matter of treason or felony, or else at the quarter sessions, if it be concerning riot or misbehaviour, or some other small offence. And he also then bindeth to appear those that give testimony and prosecute the accusation, all the accusers and witnesses, and so setteth the party at large. And at the assizes or sessions (as the case falleth out) he certifieth the recognisances taken of the accused, accusers, and witnesses, who being there are called, and appearing, the cause of the accused is debated according to law for his clearing or condemning. But if the party accused seem upon pregnant matter in the accusation, and to the justice to be guilty, and the offence heinous, or the offender taken with the manner, then the justice is to commit the party by his warrant called a mittimus to the gaoler of the common gaol of the county, there to remain until the assizes. And then the justice is to certify his accusation, examination, and recognisance taken for the appearances and 251A THE USE OF THE LAW. prosecution of the witnesses, so as the judges may, when they come, readily proceed with him as the law requireth. The judges of the assizes, as they be now become into the place of the ancient justices in eyre, called justiciarii itinerantes, which, in the prime kings after the conquest, until Henry the Third's time especially, and after, in lesser measure, even to Richard the Second's time, did execute the justice of the realm; they began in this sort. The king, not able to despatch business in his own person, erected the court of King's Bench; [1] that not able to receive all, nor meet to draw the people all to one place, there were ordained counties and the sheriff's tourns, hundred courts, and particular leets, and law-days, as before mentioned, which dealt only with crown matters for the public; but not the private titles of lands or goods, nor the trial of grand offences, of treasons, and felonies, but all the counties of the realm were divided into six circuits. And two learned men well read in the laws of the realm were assigned by the king's commission to every circuit, and to ride twice a year through those shires allotted to that circuit, making proclamation beforehand, a convenient time in every county, of the time of their coming, and place of their sitting, to the end the people might attend them in every county of that circuit. They were to stay three or four days in every county, and in that time all the causes of that county were brought before them by the parties grieved, and all the prisoners of the said gaol in every shire, and whatsoever controversies arising concerning life, lands, or goods. The authority of these judges in eyre is in part translated by act of parliament to justices of assize, which be now the judges of circuits, and they do use the same course that justices in eyre did, to proclaim their coming every half year, and the place of their sitting. The business of the justices in eyre, and of the justices of assize at this day is much lessened, for that, in Henry the Third's time, there was erected the Court of Common Pleas at Westminster, in which court have been ever since, and yet are begun and handled the great suits of lands, debts, benefices, and contracts, fines for assurance ------- 1. 1. King's Bench. 2. Marshal's Court. 3. County Court. 4. Sheriff's Tourns. 5. Hundred Leets and Law-days. All which dealt only in crown matters; but the Justice in eyre dealt in private titles of lands or goods, and in all treasons and felonies, of whom there were twelve in number, the whole realm being divided into six circuits. England divided into six circuits, and two learned men in the laws, assigned by the king's commission to ride twice a year through those shires allotted to that circuit, for their trial of private titles to lands and goods, and all treasons and felonies, which the county courts meddle not in. THE USE OF THE LAW. 251B of lands and recoveries, which were wont to be either in the King's Bench, or else before the justices in eyre. But the statute of Mag. Char. esp. 11.5. is negative against it, viz. Communia placita non sequantur curiam nostram, sed teneantur in aliquo loco Certo; which locus Certus must be the Common Pleas; yet the judges of circuits have now five commissions by which they sit. The first is a commission of oyer and terminer, directed unto them, and many others of the best account, in their circuits; but in this commission the judges of assize are of the quorum, so as without them there can be no proceeding. This commission giveth them power to deal with treasons, murders, and all manner of felonies and misdemeanors whatsoever; and this is the largest commission that they have. The second is a commission of gaol delivery; that is, only to the judges themselves, and the clerk of the assize associate: and by this commission they are to deal with every prisoner in the gaol, for what offence soever he be there; and to proceed with him according to the laws of the realm, and the quality of his offence: and they cannot, by this commission, do any thing concerning any man but those that are prisoners in the gaol. The course now in use of execution of this commission of gaol delivery is this. There is no prisoner but is committed by some justice of peace, who, before he committed him, took his examination, and bound his accusers and witnesses to appear and prosecute at the gaol delivery. This justice doth certify these examinations and bonds, and thereupon the accuser is called solemnly into the court, and when he appeareth he is willed to prepare a bill of indictment against the prisoner, and go with it to the grand jury, and give evidence upon their oaths, he and the witnesses, which he doth; and then the grand jury write thereupon either billa vera, and then the prisoner standeth indicted, or else ignoramus, and then he is not touched. The grand jury deliver these bills to the judge in their court, and so many as they find endorsed billa vera, they send for those prisoners, then is every man's indictment put and read to him, and they ask him whether he be guilty or not. If he saith guilty, his confession is recorded; if he say not guilty, then he is asked how he will be tried; he answereth, by the country. Then the sheriff is commanded to return the names of twelve freeholders to the court, which freeholders be sworn to make true delivery between the king and the prisoner, and then the indictment is again read, and the witnesses sworn to speak their knowledge concerning the fact, and the prisoner 252A THE USE OF THE LAW. is heard at large what defence he can make, and then the jury go together and consult. And after a while they come in with a verdict of guilty or not guilty, which verdict the judges do record accordingly. If any prisoner plead not guilty upon the indictment, and yet will not put himself to trial upon the jury (or stand mute), he shall be pressed. The judges, when many prisoners are in the gaol, do in the end before they go peruse every one. Those that were indicted by the grand jury, and found not guilty by the select jury, they judge to be quitted, and so deliver them out of the gaol. Those that are found guilty by both juries they judge to death, and command the sheriff to see execution done. Those that refuse trial by the country, or stand mute upon the indictment, they judge to be pressed to death: some whose offences are pilfering under twelvepence value they judge to be whipped. Those that confess their indictments, they judge to death, whipping, or otherwise, as their offence requireth. And those that are not indicted at all, but their bill of indictment returned with ignoramus by the grand jury, and all other in the gaol against whom no bills at all are preferred, they do acquit by proclamation out of the gaol. That one way or other they rid the gaol of all the prisoners in it. But because some prisoners have their books, and be burned in the hand and so delivered, it is necessary to show the reason thereof. This having their books is called their clergy, which in ancient time began thus. For the scarcity of the clergy, in the realm of England, to be disposed in religious houses, or for priests, deacons, and clerks of parishes, there was a prerogative allowed to the clergy, that if any man that could read as a clerk were to be condemned to death, the bishop of the diocese might, if he would, claim him as clerk, and he was to see him tried in the face of the court. Whether he could read or not, the book was prepared and brought by the bishop, and the judge was to turn to some place as he should think meet, and if the prisoner could read, then the bishop was to have him delivered over unto him to dispose of in some places of the clergy, as he should think meet. But if either the bishop would not demand him, or that the prisoner could not read, then was to be put to death. And this clergy was allowable in the ancient times and law, for all offences whatsoever they were, except treason and robbing of churches, their goods and ornaments. But by many statutes made since, the clergy is taken away for murder, burglary, robbery, purse-cutting, horse-stealing, and divers other felonies particularized by the statutes THE USE OF THE LAW. 252B to the judges; and lastly, by a statute made 18 Elizabeth, the judges themselves are appointed to allow clergy to such as can read, being not such offenders from whom clergy is taken away by any statute, and to see them burned in the hand, and so discharge them without delivering them to the bishop, howbeit the bishop appointeth the deputy to attend the judges with a book to try whether they could read or not. The third commission that the judges of circuits have, is a commission directed to themselves only, and the clerk of assize to take assizes, by which they are called justices of assize, and the office of those justices is to do right upon writs called assizes, brought before them by such as are wrongfully thrust out of their lands. Of which number of writs there was far greater store brought before them in ancient times than now, for that men's seisins and possessions are sooner recovered by sealing leases upon the ground, and by bringing an ejectione firme, and trying their title so, than by the long suits of assizes. The fourth commission is a commission to take Nisi Prius directed to none but to the judges themselves and their clerks of assizes, by which they are called justices of Nisi Prius. These Nisi Prius happen in this sort, when a suit is begun for any matter in one of the three courts, the King's Bench, Common Pleas, or the Exchequer here above, and the parties in their pleadings do vary in a point of fact; as for example, if an action of debt upon obligation, the defendant denies the obligation to be his debt, or in any action of trespass grown for taking away goods, the defendant denieth that he took them, or in an action of the case for slanderous words, the defendant denieth that he spake them, &c. Then the plaintiff is to maintain and prove that the obligation is the defendant's deed, that he either took the goods, or spake the words; upon which denial and affirmation the law saith, that issue is joined betwixt them, which issue of the fact is to be tried by a jury of twelve men of the county where it is supposed by the plaintiff to be done, and for that purpose the judges of the court do award a writ of venire facias in the king's name to the sheriff of that county, commanding him to cause four and twenty discreet freeholders of this county, at a certain day, to try this issue so joined, out of which four and twenty only twelve are chosen to serve. And that double number is returned, because some may make default, and some be challenged upon kindred, alliance, or partial dealing. These four and twenty the sheriff doth name and certify to the court, and withal that he hath warned them to come at the day according to their 253A THE USE OF THE LAW. writ. But, because at his first summons their falleth no punishment upon the four and twenty if they come not, they very seldom or never appear upon the first writ, and upon their default there is another writ [1] returned to the sheriff, commanding him to distrain them by their lands to appear at a certain day appointed by the writ, which is the next term after, Nisi Prius justiciarii nostri ad assizas capiendas venerint, &c. of which words the writ is called a nisi prius, and the judges of the circuit of that county in that vacation and mean time before the day of appearance appointed for the jury above, here by their commission of Nisi Prius have authority to take the appearance of the jury in the county before them, and there to hear the witnesses and proofs on both sides concerning the issue of fact, and to take the verdict of the jury, and against the day they should have appeared above, to return the verdict read in the court above, which return is called a postea. And upon this verdict clearing the matter in fact, one way or other, the judges above give judgment for the party for whom the verdict is found, and for such damages and costs as the jury do assess. By those trials called Nisi Prius, the juries and the parties are eased much of the charge they should be put to, by coming to London with their evidences and witnesses, and the courts of Westminster are eased of much trouble they should have if all the juries for trials should appear and try their causes in those courts; for those courts above have little leisure now; though the juries come not up, yet in matters of great weight, or where the title is intricate or difficult, the judges above upon information to them, do retain those causes to be tried there, and the juries do at this day in such causes come to the bar at Westminster. The fifth commission that the judges in their circuits do sit by, is the commission of the peace in every county of their circuit. And all the justices of the peace, having no lawful impediment, are bound to be present at the assizes to attend the judges, as occasion shall call out; if any make default, the judges may act a fine upon him at their pleasure and discretions. Also the sheriff in every shire through the circuit is to attend in person, or by a sufficient deputy allowed by the judges, all that time they be within the county, and the judges may fine him if he fail, or for negligence or misbehaviour in his office before them; and the judges above may also fine the sheriff for not returning or not sufficient returning of writs before them. ------- 1. Distringas. THE USE OF THE LAW. 253B Property in Lands is gotten and transferred by one to another, by these four manner of ways; 1. By Entry. 2. By Descent. 3. By Escheat. 4. Most usually by Conveyance. 1. Property by entry is, where a man findeth a piece of land that no other possesseth or hath title unto, and he that so findeth it doth enter, this entry gaineth a property; this law seemeth to be derived from this text, terra dedit filiis hominum, which is to be understood, to those that will till and manure it, and so make it yield fruit; and that is he that entereth into it, where no man had it before. But this manner of gaining lands was in the first days, and is not now of use in England, for that by the conquest all the land of this nation was in the Conqueror's hands, and appropriated unto him, except religious and church lands, and the lands in Kent, which by composition were left to the former owners, as the Conqueror found them, so that no man but the bishopricks, churches, and the men of Kent, can at this day make any greater title than from the conquest to any lands in England; and lands possessed without any such title are in the crown, and not in him that first entereth; as it is by land left by the sea, this land belongeth of the king, and not to him that hath the lands next adjoining, which was the ancient sea banks. This is to be understood of the inheritance of lands; viz. that the inheritance cannot be gained by the first entry. But an estate for another man's life by out-laws may, at this day, be gotten by entry. As a man called A. having land conveyed unto him for the life of B. dieth without making any estate of it there, whosoever first entereth into the land after the decease of A. getteth the property in the land for time of the continuance of the estate which was granted to A. for the life of B. which B. yet liveth and therefore the said land cannot revert till B. die. And to the heir of A. it cannot go, for that it is not any state of inheritance, but only an estate for another man's life; which is not descendable to the heir, except he be specially named in the grant; viz. to him and his heirs. As for the executors of A. they cannot have it, for it is not an estate testamentary, that it should go to the executors as goods and chattels should, so as in truth no man can entitle himself unto those lands; and therefore the law preferreth him that first entereth, and he is called occupans, and shall hold it during the life of B. but must pay the rent, perform the conditions, and do no waste. And he may by deed assign it to whom he please in his life time. But if he die before he assign it over, then it shall 254A THE USE OF THE LAW. go again to whomsoever first entereth and holdeth. And so all the life of B. so often as it shall happen. Likewise if any man doth wrongfully enter into another man's possession, and put the right owner of the freehold and inheritance from it, he thereby getteth the freehold and inheritance by disseisin, and may hold it against all men, but him that hath right, and his heirs, and is called as disseisor. Or if any one die seised of lands, and before his heir doth enter, one that hath no right doth enter into the lands, and holdeth them from the right heir, he is called an abator, and is lawful owner against all men but the right heir. And if such person abator, or disseisor (so as the disseisor hath quiet possession five years next after the disseisin) do continue 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. 2. Property of lands by descent is, where a man hath lands of inheritance, and dieth, not disposing of them, but leaving it to go (as the law casteth it) upon the heir. This is called descent of law, and upon whom the descent is to light, is the question. For which purpose the law of inheritance preferreth the first child before all others, and amongst children the male before the female, and amongst males the first born. If there be no children, then the brother; 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. 1. That the eldest male shall solely inherit: but if it come to females, then they, being all in an equal degree of nearness, shall inherit altogether, and are called parceners, and all they make but one heir to the ancestor. 2. That no brother nor sister of the half-blood shall inherit to his brother or sister, but as a child to his parents, as for example: If a man have two wives, and by either wife a son, the eldest son overliving his father is to be preferred to the inheritance of the father, being fee-simple; but if he entereth and dieth 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 brother or sister of the whole blood; yet if the eldest bro- THE USE OF THE LAW. 254B ther had died, or had not entered in the life of the father, either by such entry or conveyance, then the youngest brother should inherit the land that the father had, although it were a child by the second wife, before any daughter by the first. The third rule about descents. That land purchased so by the party himself that dieth is to be inherited; first, by the heirs of the father's side; then, if he have none of that part, by the heirs of the 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 not to the other side. Those rules of descent mentioned before are to be understood of fee simples, and not of entailed lands, and those rules are restrained by some particular customs of some particular places; as, namely, the custom of Kent, that every male of equal degree of childhood, brotherhood, or kindred, shall inherit equally, as daughters shall, being parceners; and in many borough towns of England, and the custom alloweth the youngest son to inherit, and so the youngest daughter. The custom of Kent is called gavelkind. The custom of boroughs, burgh English. And there is another note to be observed in fee-simple inheritance, and that is, that every heir having fee-simple land or inheritance, be it by common law or by custom of either gavelkind or burgh English, is chargeable so far forth as the value thereof extendeth with the binding acts of the ancestors from whom the inheritance descendeth; and these acts are collateral encumbrances; and the reason of this charge is, qui sentit commodum, sentire debet et incommodum sive onus. As for example, if a man 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 warranty, in all these cases the law chargeth the heir, after the death of the ancestor, with this obligation, covenant, annuity, and warranty, yet with these three cautions: first, that the party must by special name bind himself and his heirs, or covenant, grant, and warrant for himself 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 an action be 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 was by fraud conveyed away of purpose to prevent the suit intended against him. Thirdly, that no heir is further to be charged than the value of the land descended unto him from the same ancestor that made the 255A THE USE OF THE LAW. instrument of charge, and that land also not to be sold outright for the debt, but to be kept in extent, and at a yearly value, until the debt or damage be run out. 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 come not in immediately, and by way of confession set down the true quantity of his inheritance descended, and so submit himself therefore, as the law requireth, then that heir that otherwise demeaneth himself shall be charged of his own lands or goods, and of his money, for this 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 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. 3. Property of lands by escheat is where the owner died seised of the lands in possession without child or other heir, thereby the land, for lack of other heir, is said to escheat to the lord of whom it is holden. This lack of heir happeneth principally in two cases: first where the lands' owner is a bastard. Secondly, where he is attainted of felony or treason. For neither can a bastard have any heir, except it be his own child, nor a man attainted of treason, 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 held, 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 the attainder, with a liberty to commit all manner of waste all that year in houses, gardens, ponds, lands, and woods. In these escheats two things are especially to be observed; the one is the tenure of the lands, because it directeth the person to whom the escheat belongeth, viz. the lord of the manor of whom the land is holden. 2. The manner of such attainder which draweth with it the escheat. Concerning the tenures 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 THE USE OF THE LAW. 255B holden of the crown immediately, or by mesne lords, 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 the same, (except religious and church lands, and the land in Kent,) and still as he gave any of it out of his own hand, he reserved some retribution of rents or services, or both, to him and to his heirs, which reservation is that which is called the tenure of land. In which reservation he had four institutions, exceeding politic and suitable to the state of a conqueror. 1. Seeing his people to be part Normans, and part Saxons, the Normans he brought with him, the Saxons he found here, he bent himself to conjoin them by marriages in amity, and for that purpose ordains, 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, and a female within fourteen years, and unmarried, then the king should have the bestowing of such heirs in marriage, in such a family, [1] and to such persons as he should think meet; which interest of marriage went still employed, and doth at this day in every tenure called knight's service. The second was to the end that his people should still be conserved in warlike excercises, and able for his defence. When therefore he gave any good portion of lands, that might make the party of abilities or strength, he withal reserved this service: that that party and his heirs having such lands, should keep a horse of service continually, and serve upon him himself when the king went to wars, or else, having impediment to excuse his own person; should find another to serve in his place; which service of horse and man is part of that tenure called knight's service at this day. But if the tenant himself be an infant, the king is to hold this land himself until he come to full age, finding him meat, drink, apparel, and other necessaries, and finding a horse and a man with the overplus to serve in the wars as the tenant himself should do if he were at full age. But if this inheritance descend upon a woman, that cannot serve by her sex, then the king is not to have the lands, she being of fourteen years of age, because she is then able to have a husband that may do the service in person. The third institution, that upon every gift of land the king reserved a vow ------- 1. Interest of marriage goeth employed in every tenure by knight's service. 256A THE USE OF THE LAW. and an oath to bind the party to his faith and loyalty: [1] that vow was called homage, the oath fealty. Homage is to be done between the knees of the lord, 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 the king, and do his service, and pay his rents according to his tenure. The fourth institution was, that for recognizon [2] of the king's bounty by every heir succeeding his ancestor in those knight's service lands, the king should have primer seisin of the lands, which is one year's profit of the lands, and until this be paid the king is to have possession of the land, and then to restore it to the heir; which continueth at this day in use, and is the very cause of suing livery, and that as well where the heir hath been in ward as otherwise. These beforementioned be the rights of the tenure called knight's service in capite, which is as much to say, as tenure de persona regis, and capite 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 is capite by knight's service generally was a great safety to the crown, so also the conqueror instituted other tenures in capite necessary to his estate; 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's service and more in them, and these he called tenures by grand serjeanty. Also he provided, upon the first gift of lands, to have revenues by continual service of ploughing his lands, houses, parks, pales, castles, and the like. And sometimes to a yearly provision of gloves, spurs, hawks, horses, hounds, and the like; which kind of reservations are called also tenures in chief, or in capite of the king, but they are not by knight's service, because they required no personal service, but such things as the tenants may hire another to do, or provide for his money. And this tenure is called a tenure ------- 1. Aid money to make the king's eldest son a knight, or to marry his oldest daughter, is likewise due to his majesty from every one of his tenants in knight's service, that hold by a whole fee, twenty shillings, and from every tenant in soccage if his land be worth twenty pounds per annum, twenty shillings, vide N. 3. fol. 82. 2. Escuage was likewise due unto the king from his tenant by knight's service; when his majesty made a voyage royal to war against another nation, those of his tenants that did not attend him there for forty days, with horse and furniture fit for service, were to be assessed in a certain sum by act of parliament, to be paid unto his majesty; which assessment is called escuage. THE USE OF THE LAW. 256B by soccage in capite, the word socagium signifying the plough; howbeit, in this latter time, the service of ploughing the land is turned into money rent, and so of harvest works, for that the kings to not keep their demesne in their own hands as they were wont to do; yet what lands were de antiquo dominico coronae, it well appeareth in the records of the Exchequer, called the Book of Doomsday. And the tenants by ancient demesne have many immunities and privileges at this day, that in ancient times were granted unto those tenants by the crown, the particulars whereof are too long to set down. These tenures in capite, as well that by soccage as the others by knight's service, have this property, that the tenants cannot alien their lands without license of the king; if he do, the king is to have a fine for the contempt, and may seize that land, and retain it until the fine be paid. And the reason is, because the king would have a liberty in the choice of his tenant, so that no man should presume to enter into those lands, and hole them (for which the king was to have those special services done him) without the king's leave. This license and fine, as it is now digested, is easy and of course. There is an office called the office of alienation, where any man may have a license at a reasonable rate, that is, at the third part of one year's value of the land moderately rated. A tenant in cap. by knight's service or grand serjeanty, was restrained by ancient statute, that he should not give nor alien away more of his lands, than that with the rest he might be able to do the service due to the king; and this is now out of use. And to this tenure by knight's service in chief was incident, that the king should have a certain sum of money, called aid, due to be rateably levied amongst all those tenants proportionably to his lands, to make his eldest son a knight, or to marry his eldest daughter. And it is to be noted, that all those that hold lands by the tenure of soccage in capite (although not by knight's service) cannot alien without license; and they are to sue livery, and pay primer seisin, but not to be in ward for body or land. By example and resemblance of the king's policy in these institutions of tenures, the great men and gentlemen of this realm did the like so near as they could; as for example, when the king had given to any of them two thousand acres of land, this party purposing in this place to make his dwelling, or, as the old word is, his mansion house, or 257A THE USE OF THE LAW. his manor house, did devise how he might make his land a complete habitation to supply him with all manner of necessities, and for that purpose, he would give of the outtermost parts of those two thousand acres one hundred or two hundred acres, or more or less, as he should think meet, to one of his most trusty servants, with some reservation of rent, to find a horse for the wars, and go with him when he went with the king to the wars, adding vow of homage, and the oath of fealty, wardship, marriage, and relief. This relief is to pay five pounds for every knight's fee, or after the rate for more or less at the entrance of every heir; which tenant, [1] so created and placed, was and is to this day called a tenant by knight's service, and not by his own person, but of his manors; of these he might make as many as he would. Then this lord would provide that the land which he was to keep for his own use should be ploughed, and his harvest brought home, his house repaired, his park paled, and the like; and for that end he would give some lesser parcels to sundry others, of twenty, thirty, forty, or fifty acres, reserving the service of ploughing a certain quantity (or so many days) of his land, and certain harvest works or days in the harvest to labour, or to repair the house, park, pale, or otherwise, or to give him, for his provision, capons, hens, pepper, commin, roses, gilliflowers, spurs, gloves, or the like; or to pay him a certain rent, and to be sworn to be his faithful tenant, which tenure was called a soccage tenure, and is so to this day, howbeit most of the plowing and harvest services are turned into money rents. The tenants in soccage at the death of every tenant were to pay relief, which was not as knight's service is, five pounds a knight's fee. [2] But it was, and so is still, one year's rent of the land, and no wardship or other profit to the lord. The remainder of the two thousand acres he kept to himself, which he used to manure by his bondmen, and appointed them at the courts of his manor how they should hold it, making an entry of it into the roll of the remembrances of the acts of his court, yet still in the lord's power to take it away; and therefore, they were called tenants at will, by copy of court roll; being in truth bondmen at the beginning, but having obtained freedom of their persons, and gained a custom by use of occupying their lands, they now are called copyholders, and are so privileged that the lord cannot put them ------- 1. Knight's service tenure created by the lord is not a tenure by knight's service of the person of the lord, but of his manor. 2. Aid money and escuage money is likewise due unto the lords of their tenants, vide N. 3. fol. 82 and 83. THE USE OF THE LAW. 257B out, and all through custom. Some copyholders are for lives, one, two, or three successively; and some inheritances from heir to heir by custom, and custom ruleth these estates wholly, both for widow's estates, fines, harriots, forfeitures, and all other things. Manors being in this sort made at the first, reason was that the lord of the manor should hold a court, which is no more than to assemble his tenants together at a time by him to be appointed; in which court he was to be informed, by oath of his tenants, of all such duties, rents, reliefs, wardships, copyholds, or the like, that had happened unto him, which information is called a presentment, and then his bailiff to seize and distrain for those duties, if they wree denied or withholden, which is called a court baron: and herein a man may sue for any debt or trespass under forty pounds value, and the freeholders are to judge of the cause upon proof produced upon both sides. And therefore the freeholders of these manors, as incident to their tenures, do hold by suit of court, which is to come to the court, and there to judge between party and party in those petty actions; and also to inform the lord of duties, of rents, and services unpaid to him from his tenants. By this course it is discerned who be the lords of lands, such as if the tenants die without heir, or be attainted of felony or treason, shall have the land by escheat. Now concerning what attainders shall give the escheat to the land, it is to be noted, that it must either be by judgment of death given in some court of record, against the felon found guilty by verdict, or confession of the felony, or it must be by outlawry of him. The outlawry groweth in this sort: a man is indicted for felony, being not in hold, so as he cannot be brought in person to appear, and to be tried, insomuch that process of capias is therefore awarded to the sheriff, who not finding him, returneth non est inventus in Balliva mea; and thereupon another capis is awarded to the sheriff, who likewise, not finding him, maketh the same return; then a writ called an exigent is directed to the sheriff, commanding him to proclaim him in his county court, five several court days, to yield his body, which if the sheriff do, and the party yield not his body, he is said by the default to be outlawed, the coroners there adjudging him outlawed, and the sheriff making the return of the proclamations and of the judgment of the coroners upon the back side of the writ. This is an attainder of felony, whereupon the offender doth forfeit his lands, by an escheat, to the lord of whom they are holden. But note, that a man found guilty of felony by verdict or confession, and 258A THE USE OF THE LAW. praying his clergy, and thereupon reading as a clerk, and so burnt in the hand and discharged, is not attainted, because he, by his clergy, preventeth the judgment of death, and is called a clerk convict who loseth not his lands, but all his goods, chattels, leases and debts. So a man inclined, that will not answer, nor put himself upon trial, although he by this to have judgment of pressing to death, yet he doth forfeit no lands, but goods, chattels, leases, and debts, except his offence be treason, and then he forfeiteth his lands to the crown. So a man that killeth himself shall not lose his lands, but his goods, chattels, leases, and debts. So of those that kill others in their own defence, or by misfortune. A man that being pursued for felony, and flieth for it, loseth his goods for his flying, although he return and is tried, and found not guilty of the fact. So a man indicted of felony, if he yield not his body to the sheriff until after the exigent of proclamation is awarded against him, this man doth forfeit all his goods for his long stay, although he be found not guilty of the felony; but none is attainted to lose his lands, but only such as have judgments of death, by trial upon verdict, or their own confession, or that they be by judgment of the coroners outlawed as before. Besides the escheats of lands to the lords of whom they be holden for lack of heirs, by attainder for felony (which only do hold place in fee-simple lands,) there are also forfeiture of lands to the crown by attainder of treason; as namely, if one that hath entailed lands commit treason, he forfeiteth the profits of the lands for his life to the crown, but not to the lord. And if a man, having an estate for life of himself or of another, commit treason or felony, the whole estate is forfeited to the crown, but no escheat to the lord. But a copyhold for fee-simple, or for life, is forfeited to the lord and not to the crown; and if it be entailed, the lord is to have it during the life of the offender only, and then his heir is to have it. The custom of Kent is, that gavelkind is not forfeitable nor escheatable for felony, for they have an old saying; the father to the bough, and the son to the plough. If the husband was attainted, the wife was to lose her thirds in cases of felony and treason, but yet she is no offender; but at this day, it is holden by statute law that she loseth them not for the husband's felony. The relation of these forfeits are these. THE USE OF THE LAW. 258B 1. That men attainted [1] of felony or treason, by verdict or confession, do forfeit all the lands they had at the time of their offence committed, and the king or the lord, whosoever of these hath the escheat or forfeiture, shall come in and avoid all leases, statutes, or conveyances done by the offender, at any time since the offence done. And so is the law clear also if a man be attainted for treason by outlawry; but upon attainder of felony by outlawry it hath been much doubted by the law books whether the lord's title by escheat shall relate back to the time of the offence done, or only to the date or test of the writ of exigent for proclamation, whereupon his is outlawed; howbeit at this day it is ruled, that it shall reach back to the time of his fact, but for goods, chattels, and debts, the king's title shall look no further back than to those goods, the party attainted by verdict or confession had at the time of the verdict and confession given or made, and in outlawries at the time of the exigent, as well in treasons or felonies; wherein it is to be observed, that upon the parties first apprehension, the king's officers are to seize all the goods and chattels, and preserve them together, dispending only so much out of them as is fit for the sustentation of the person in prison, without any wasting, or disposing them until conviction, and then the property of them is in the crown, and not before. It is also to be noted, that persons attainted of felony or treason have no capacity in them to take, obtain, or purchase, save only to the use of the king, until the party be pardoned. Yet the party giveth not back his lands or goods without a special patent of restitution, which cannot restore the blood without an act of parliament. So if a man have a son, and then is attainted of felony or treason, and pardoned, and purchaseth lands, and then hath issue another son, and dieth, the son he had before he had his pardon, although he be his eldest son, and the patent have the words of restitution to his lands, shall not inherit, but his second son shall inherit them, and not the first; because the blood is corrupted by the attainder, and cannot be restored by patent alone, but by act of parliament. And if a man have two sons, and the eldest is attainted in the life of his father, and dieth without issue, the father living, the second son shall inherit the father's lands; but if the eldest son have any issue, though he die in the life of his father, then neither the second son, nor the issue of the eldest, shall inherit the father's lands, but the father ------- 1. Of the relation of attainders, as to the forfeiture of lands and goods with the diversity. 259A THE USE OF THE LAW. shall there be accounted to die without heir, and the land shall escheat, whether the eldest son have issue or not afterward or before, though he be pardoned after the death of his father. 4. Property of lands by conveyance is first distributed into estates for years, for life, in tail, and fee-simple. These estates are created by word, by writing, or by record. For estates of years, which are commonly called leases for years, they are thus made; where the owner of the land agreeth with the other by word of mouth, that the other shall have, hold, and enjoy the land, to take the profits thereof for a time certain of years, months, weeks, or days, agreed between them, and this is called a lease parol; such a lease may be made by writing pole, or indented of devise, grant, and to farm let, and so also by a fine of record; but whether any rent be reserved or no, it is not material. Unto these leases there may be annexed such exceptions, conditions, and covenants, as the parties can agree on. They are called chattels real, and are not inheritable by the heirs, but go to the executors and administrators, and be saleable for debts in the life of the owner, or in the executors' or administrators' hands by writs of execution upon statutes, recognisances, judgments of debts or damages. They be also forfeitable to the crown by outlawry, by attainder for treason, felony, or premunire, killing himself, flying for felony, although not guilty of the fact, standing out or refusing to be tried by the country, by conviction of felony, by verdict without judgment, petty larceny, or going beyond the sea without license. They are forfeitable to the crown, in like manner as leases for years, or interest gotten in other men's lands, by extending for debt upon judgment in any court of record, stat. merchant, stat. staple, recognisances; which being upon statutes are called tenants by stat. merchant, or staple, the other tenants by elegit, and by wardship of body and lands, for all these are called chattels real, and go to the executors and administrators, and not to the heirs, and are saleable and forfeitable as leases for years are. Leases for lives are also called freeholds, they may also be made by word or writing, there must be livery and seisin [1] given at the making of the lease, when we call the lessor, who cometh to the door, back side, or garden, if it ------- 1. What livery of seisin is, and how it is requisite to every estate for life. THE USE OF THE LAW. 259B be a house, if not, then to some part of the land, and there he expresseth, that he doth grant unto the taker, called the lessee, for term of his life, and in seisin thereof, he delivereth to him a turf, twig, or ring of the door; and if the lease be by writing, then commonly there is a note written on the back side of the lease, [1] with the names of those witnesses who were present at the time of the livery of seisin made. This estate is not saleable by the sheriff for debt, but the land is to be extended for a yearly value, to satisfy the debt. It is not forfeitable by outlawry, except in cases of felony, nor by any of the means before mentioned, of leases for years; saving in an attainder for, and felony, treason, premunire, and then only to the crown, not to the lords by escheat. And though a nobleman or other have liberty, by charter, to have all felon's goods, yet a tenant holding for term of life, being attainted of felony, doth forfeit unto the king, and not to this nobleman. If a man have an estate in lands for another man's life, and dieth, this land cannot go to his heir, nor to his executors, but to the party that first entereth, and he is called an occupant as before hath been declared. A lease for years, or for life, may be made also by fine of record, or bargain and sale, or covenant, to stand seised upon good considerations of marriage, or blood, the reasons whereof are hereafter expressed. Entails of lands are created by a gift, with livery and seisin to a man, and to the heirs of his body; this word (body) making the entail may be demonstrated and restrained to the males or females, heirs of their two bodies, or of the body of either of them, or of the body of the grandfather or father. Entails of lands began by a statute made in Edward the First's time, by which also they are so much strengthened, as that the tenant in tail could not put away the land from the heir by any act of conveyance or attainder, nor let it, nor encumber it, longer than his own life. But the inconvenience thereof was great, for, by that means, the land being so sure tied upon the heir, as that his father could not put it from him, it made the son to be disobedient, negligent, and wasteful, often marrying without the father's consent, and to grow insolent in vice, knowing that there could be no check of disinheriting him. It also made the owners of the land less fearful to commit murders, felonies, treasons, and manslaughters; for that they knew none of these acts could hurt ------- 1. Endorsement of livery upon the back of the deed, and witness of it. 260A THE USE OF THE LAW. the heir of his inheritance. It hindered men that had entailed lands, that they could not make the best of their lands by fine and improvement, for that none upon so uncertain an estate, as for term of his own life, would give him a fine of any value, nor lay any great stock upon the land that might yield rent improved. Lastly, those entails did defraud the crown and many subjects of their debts; for that the land was not liable longer than his own lifetime, which caused that the king could not safely commit any office of account to such, whose lands were entailed, nor other men trust them with loan of money. These inconveniences were all remedied by acts of Parliament; as namely, by acts of Parliament later than the acts of entails, made 4 H. VII. 32 H. VIII. A tenant in tail may disinherit his son by a fine with proclamation, and may, by that means also, make it subject to his debts and sales. By a statute made, 26 H. VIII, a tenant in tail doth forfeit his lands for treason; and by another act of Parliament, 32 H. VIII, he may make leases good against his heir for twenty-one years, or three lives; so that it be not of his chief houses, lands, or demesne, or any lease in reversion, nor less rent reserved than the tenants have paid most part of twenty-one years before, nor having any manner of discharge for doing wastes and spoils: by a statute made 33 H. VIII. tenants of entailed lands are liable to the king's debts by extent, and by a statute made 13 and 39 Eliz. they are saleable for the arrearages upon his account for his office. So that now it resteth, that entailed lands have two privileges only, which be these. First, not to be forfeited for felonies. Secondly, not to be extended for debts after the parties' death, except the entails be cut off by fine and recovery. But it is to be noted, that since these notable statutes, and remedies provided by statutes, do dock entails, there is start up a device called perpetuity, which is an entail with an addition of a proviso conditional, tied to his estate, not to put away the land from his next heir; and if he do, to forfeit his own estate. Which perpetuities, if they should stand, would bring in all the former inconveniences subject to entails, that were cut off by the former mentioned statutes, and far greater: for, by the perpetuity, if he that is in possession start away never so little, as in making a lease, or selling a little quillet, forgetting after two or three descents, as often they do, how they are tied, the next heir must enter, who, peradventure, is his son, his brother, uncle, or kinsman, and this raiseth THE USE OF THE LAW. 260B unkind suits, setting all that kindred at jars, some taking one part, some another, and the principal parties wasting their time and money in suits of law. So that in the end they are both constrained by necessity to join both in a sale of the land, or a great part of it, to pay their debts, occasioned through their suits. And if the chiefest of the family, for any good purpose of well seating himself, by selling that which lieth far off is to buy that which is near, or for the advancement of his daughters or younger sons should have reasonable cause to sell, this perpetuity, if it should hold good, restraineth him. And more than that, where many are owners of inheritance of land, not entailed may, during the minority of his eldest son, appoint the profits to go to the advancement of the younger sons and daughters, and pay debts; by entails and perpetuities the owners of these lands cannot do it, but they must suffer the whole to descend to his eldest son, and so to come to the crown by wardship all the time of his infancy. Wherefore, seeing the dangerous times and untowardly heirs, they might prevent those mischiefs of undoing their houses by conveying the land from such heirs, if they were not tied to the stake by those perpetuities, and restrained from forfeiting to the crown, and disposing it to their own or to their children's good; therefore it is worthy of consideration, whether it be better for the subject and sovereign, to have the lands secured to men's names and bloods by perpetuities, with all the inconveniences abovementioned, or to be in hazard of undoing his house by unthrifty posterity. The last and greatest estate of lands is fee-simple, and beyond this there is none of the former for lives, years, or entails; but beyond them is fee-simple. For it is the greatest, last, and uttermost degree of estates in land; therefore he that maketh a lease for life, or a gift in tail, may appoint a remainder when he maketh another for life or in tail, or to a third in fee-simple; but after a fee-simple he can limit no other estate. And if a man do not dispose of the fee-simple by way of remainder, when he maketh the gift in tail, or for lives, then the fee-simple resteth in himself as a reversion. The difference between a reversion and a remainder is this: The remainder is always a succeeding estate, appointed upon the gifts of a precedent estate, at the time when the precedent is appointed. But the reversion is an estate made by him for years, life, or entail; where the remainder is made with the particular estates, then it must be done by deeds in writing, with livery and seisin, and cannot be by words. 261A THE USE OF THE LAW. And if the giver will dispose of the reversion after it remaineth in himself, he is to do it by writing, and not by word, and the tenant is to have notice of it, and to atturn it, which is to give his assent by word, or paying rent, or the like; and except the tenant with thus atturn, the party to whom the reversion is granted cannot have the reversion, neither can he compel him by any law to atturn, except the grant of reversion be by fine; and then he may by writ provided for that purpose: and if he do not purchase that writ, yet by the fine the reversion shall pass; and the tenant shall pay no rent, except he will himself, nor be punished for any wastes in houses, woods, &c., unless it be granted by bargain and sale by indenture enrolled. These fee-simple estates lie open to all perils of forfeitures, extents, encumbrances, and sales. Lands are conveyed by these six means: first, by feoffment, which is, where by deed lands are given to one and his heirs, and livery and seisin made according to the form and effect of the deed; if a lesser estate than fee-simple be given, and livery of seisin made, it is not called a feoffment, except the fee-simple be conveyed, but is otherwise called a lease for life or gift entail as abovementioned. A fine is a real agreement, beginning thus, Haec est finalis concordia, &c. This is done before the king's judges in the Court of Common Pleas, concerning lands that a man should have from another to him and his heirs, or to him for his life, or to him and the heirs of his body, or for years certain, whereupon rent may be reserved, but no condition or covenants. this fine is a record of great credit, and upon this fine are four proclamations made openly in the Common Pleas; that is, in every term one for four terms together; and if any man, having right to the same, make not his claim within five years after the proclamations ended, he loseth his right, for ever, except he be an infant, a woman covert, a madman, or beyond the seas, and then his right is saved; so that he claim within five years after the death of her husband's full age, recovery of his writs, or return from beyond the seas. This fine is called a feoffment of record, because that it includeth all that the feoffment doth, and worketh further of his own nature, and barreth entails peremptorily, whether the heir doth claim within five years or not, if he claim by him that levied the fine. Recoveries are where, for assurances of lands, the parties do agree, that one shall begin an action real against the other, as though he had good right to the land, and the other shall not enter into defence against it, but allege that he bought the land of I. H. who had THE USE OF THE LAW. 261B warranted unto him, and pray that I. H. may be called in to defend the title which I. H. is one of the cryers of the Common Pleas, and is called the common voucher. This I. H. shall appear and make as if he would defend it, but shall pray a day to be assigned him in his matter of defence, which being granted him, at the day he maketh default, and thereupon the court is to give judgment against him, which cannot be for him to lose his lands, because he hath it not, but the party that he hath sold it to, that who vouched him to warrant it. Therefore the demandant who hath no defence made against it, must have judgment to have the land against him that he sued, (who is called the tenant,) and the tenant is to have judgment against I. H. to recover in value so much land of his, where, in truth, he hath none, nor never will. And by this device, grounded upon the strict principles of law, the first tenant loseth the land, and hath nothing for it; but it is by his own agreement, for assurances to him that bought it. This recovery barreth entails, and all remainders and reversions that should take place after the entails, saving where the king is giver of the entail, and keepeth the reversion to himself, then neither the heir, nor the remainder, not reversion is barred by the recovery. The reason why the heirs, remainders and reversions are thus barred is because in strict law the recompense adjudged against the cryer that was vouchee, is to go in succession of estate as the land should have done, and then it was not reason to allow the heir the liberty to keep the land itself and also to have recompense; and, therefore, he loseth the land, and is to trust to the recompense. This sleight was first invented when entails fell out to be so inconvenient as is before declared, so that men made no conscience to cut them off if they could find law for it. And now by use, those recoveries are become common assurances against entails, remainders, and reversions, and are the greatest security purchasers have for their moneys; for a fine will bar the heir in tail, and not the remainder, nor reversion, but a common recovery will bar them all. Upon feoffments and recoveries, the estate doth settle as the use and intent of the parties is declared by word or writing, before the act was done; As for example; they make a writing that one of them shall levy a fine, make a feoffment, or suffer a common recovery to the other, but the use and intent is, that one should have it for his 262A THE USE OF THE LAW. life, and after his decease, a stranger to have it in tail, and then a third in fee-simple. In this case the land settleth in an estate according to the use and intent declared. And that by reason of the statute made 27 H. VIII. conveying the land in possession to him that hath interest in the use, or intent of the fine, feoffment, or recovery, according to the use and intent of the parties. Upon this statute is likewise grounded the fourth and fifth of the six conveyances, viz. bargains, sales, covenants, to stand seised to uses; for this statute, wheresoever it findeth a use, conjoineth the possession to it, and turneth it into like quality of estate, condition, rent, and the like as the use hath. The use is but the equity and honesty to hold the land in conscientia boni viri. As for example; I and you agree that I shall give you money for your land, and you shall make me assurance of it. I pay you the money, but you made me no assurance of it. Here, although the estate of the land be still in you, yet the equity and honesty to have it is with me; and this equity is called the use, upon which I had no remedy but in Chancery, until this statute was made of 27 H. VIII. and now this statute conjoineth and containeth the land to him that hath the use. I for my money paid to you have the land itself, without any other conveyance from you, and it is called a bargain and sale. But the parliament that made that statute did foresee that it would be mischievous that men's lands should so suddenly, upon the payment of a little money, be conveyed from them, peradventure in an alehouse or a tavern, upon strainable advantages, did therefore gravely provide another act in the same parliament, that the land, upon payment of this money, should not pass away, except there were a writing indented made between the said two parties, and the said writing also within six months enrolled in some of the courts at Westminster, or in the sessions rolls in the shire where the land lieth, unless it be in cities or corporate towns where they did use to enrol deeds, and there the statute extendeth not. The fifth conveyance of a fine is a conveyance to stand seised to uses. It is in this sort; a man that hath a wife and children, brethren, and kinsfolk, may by writing under his hand and seal, agree that for their or any of their preferment he will stand seised of his lands to their uses, either for life in tail or fee, so as he shall see cause; upon which agreement in writing there ariseth an equity or honesty, that the land should go according to those agreements; nature and reason THE USE OF THE LAW. 262B allowing these provisions, which equity and honesty is the use. And the use being created in this sort, the statute of 27 H. VIII. beforementioned, conveyeth the estate of the land, as the use is appointed. And so this covenant to stand seised to uses is at this day, since the said statute, a conveyance of land, and with this difference from a bargain and sale; in that this needeth no enrolment as a bargain and sale doth, nor needeth it to be in writing indented, as bargain and sale must: and if the party to whose use he agreeth to stand seised of the land, be not wife, or child, cousin, or one that he meaneth to marry, then will no use rise, and so no conveyance; for although the law alloweth such weighty considerations of marriage and blood to raise uses, yet doth it not admit so trifling considerations as of acquaintance, schooling, services, or the like. But where a man maketh an estate of his land to others by fine, feoffment, or recovery, he may then appoint the use to whom he listeth, without respect of marriage, kindred, or other things; for in that case his own will and declaration guideth the equity of the estate. It is not so when he maketh no estate, but agreeth to stand seised, nor when he hath taken any thing, as in the cases of bargain, and sale, and covenant, to stand to uses. The last of the six conveyances is a will in writing, which course of conveyance was first ordained by statute made 32 H. VIII. before which statute no man might give land by will, except it were in a borough town, where there was an especial custom that men might give their lands by will; as in London, and many other places. The not giving of land by will was thought to be a defect at common law; that men in wars, or suddenly falling sick, had not power to dispose of their lands, except they could make a feoffment, or levy a fine, or suffer a recovery, which lack of time would not permit; and for men to do it by these means, when they could not undo it again, was hard: besides, even to the last hour of death, men's minds might alter upon further proofs of their children or kindred, or increase of children or debt, or defect of servants, or friends, to be altered. For which cause it was reason that the law should permit him to reserve to the last instant the disposing of his lands, and to give him means to dispose it, which seeing it did not fitly serve, men used this device. They conveyed their full estates of their lands, in their good health, to friends in trust, properly called feoffees in trust, 263A THE USE OF THE LAW. and then they would, by their wills, declare how their friends should dispose of their lands; and if those friends would not perform it, the Court of Chancery was to compel them, by reason of the trust; and this trust was called the use of the land, so as the feoffees had the land, and the party himself had the use; which use was in equity, to take the profits for himself, and that the feoffees should make such an estate as he should appoint them; and if he appointed none, then the use should go to the heir, as the estate itself of the land should have done; for the use was to the estate like a shadow following the body. By this course of putting lands into use, there were many inconveniences (as this use which grew first for a reasonable cause), viz. to give men power and liberty to dispose of their own, was turned to deceive many of their just and reasonable rights; as, namely, a man that had cause to sue for his land, know not against whom to bring his action, nor who was owner of it. The wife was defrauded of her thirds; the husband of being tenant by courtesy; the lord of his wardship, relief heriot, and escheat; the creditor of his extent for debt; the poor tenant of his lease, for these rights and duties were given by law from him that was owner of the land, and none other, which was now the feoffee of trust, and so the old owner, which we call the feoffor, should take the profits, and leave the power to dispose of the land at his discretion to the feoffee, and yet he was not such a tenant as to be seised of the land, so as his wife could have dower, or the lands be extended for his debts, or that he could forfeit it for felony or treason, or that his heir could be ward for it, or any duty of tenure fall to the lord by his death, or that he could make any leases of it. Which frauds, by degrees of time, as they increased, were remedied by divers statutes; as, namely, by a statute of 1 H. VI. and 4 H. VIII. it was appointed that the action may be tried against him which taketh the profits, which was then cestuy que use by a statute made 1 R. III. Leases and estates made by cestuy que use are made good, and statutes by him acknowledged. 4 H. VIII. the heir of cestuy que use is to be in ward. 16 H. VIII. the lord is to have relief upon the death of any cestuy que use. Which frauds nevertheless multiplying daily, in the end 27 H. VIII. the Parliament, purposing to take away all those uses, and reducing the law to the ancient form of conveying of lands by public livery of seisin, fine, and recovery, did ordain, that where lands were put in trust or use, there the possession and estate should be presently carried out of the friends in trust, and settled and invested on him that had the uses, for such term and time as he had the use. THE USE OF THE LAW. 263B By this statute of 27 H. VIII. the power of disposing land by will is clearly taken away amongst those frauds; whereupon 32 H. VIII. another statute was made, to give men power to give lands by will in this sort. First, it must be by will in writing. Secondly, he must be seised of an estate in fee-simple; for tenant for another man's life, or term in tail, cannot give land by will, by that statute, 32 H. VIII. he must be solely seised, and not jointly with another; and then being thus seised, for all the land he holdeth in soccage tenure, he may give it by will, except he hold any piece of land in capite, by knight's service of the king; and then, laying all his lacks together, he can give but two parts by will, for the third part of the whole, as well in soccage as in capite, must descend to the heir, to answer wardship, livery, and primer seisin to the crown. And so if he hold lands by knight's service of a subject, he can devise of the land but two parts, and the third the lord by wardship, and the heir by descent, is to hold. And if a man that hath three acres of land holden in capite, by knight's service, do make a jointure to his wife of one, and convey another to any of his children, or to friends, to take the profits and to pay his debts, or legacies, or daughters' portions, then the third acre, or any part thereof, he cannot give by will, but must suffer it to descend to the heir, and that must satisfy wardship. Yet a man, having three acres as before, may convey all to his wife or children, by conveyance, in his lifetime, as by feoffment, fine, recovery, bargain, and sale, or covenant to stand seised to uses, and to disinherit the heir. But if the heir be within age when his father dieth, the king or other lord shall have that heir in ward, and shall have one of the three acres during the wardship, and to sue livery and seisin. But at full age the heir shall have no part of it, but it shall go according to the conveyance made by the father. It hath been debated how the thirds shall be set forth. For it is the use that all lands which the father leaveth to descend, to the heir, being fee-simple, or in tail, must be part of the thirds; and if it be a full third, then the king, nor heir, nor lord, can intermeddle with the rest; if it be not a full third, yet they must take it so much as it is, and have a supply out of the rest. This supply is to be taken thus; if it be the king's ward, then by a commission out of the court of wards, whereupon a jury by oath must set 264A THE USE OF THE LAW. forth so much as shall make up the thirds, except the officers of the court of wards can otherwise agree with the parties. If there be no wardship due to the king, then the other lord is to have this supply by a commission out of the chancery, and jury thereupon. But in all those cases the statutes do give power to him that maketh the will to set forth, and appoint of himself, which lands shall go for thirds, and neither king nor lord can refuse it. And if it be not enough, yet they must take that in part, and only have a supply in manner as before is mentioned out of the rest. Property in goods. ( 1. By gift. ( 2. By sale. ( 3. By stealing. Of the several ways ( 4. By waving. whereby a man may ( 5. By straying. get property in goods ( 6. By shipwreck. or chattels. ( 7. By forfeiture. ( 8. By executorship. ( 9. By administration. ( 10. By legacy. I. Property by gift. By gift the property of goods may be passed by word or writing; but if there be a general deed of gift made of all his goods, this is suspicious to be done upon fraud, to deceive the creditors. And if a man who is in debt make a deed of gift of all his goods to protect the taking of them in execution for his debt, this deed of gift is void, as against those to whom he stood indebted; but as against himself, his own executors or administrators, or any man to whom afterwards he shall sell or convey them, it is good. II. By sale. Property in goods by sale. By sale any man may convey his own goods to another: and although he may fear execution for debts, yet he may sell them outright for money at any time before the execution served, so that there be no reservation of trust between them; paying the money, he shall have the goods again; for that trust, in such case, doth prove plainly a fraud to prevent the creditors from taking the goods in execution. III. By theft, or taking in jest. Property of goods by theft, or taking in jest. If any man steal my goods or chattels, or take them from me in jest, or borrow them of me, or as a trespasser or felon THE USE OF THE LAW. 264B carry them to the market or fair, and sell them, this sale doth bar me of the property of my goods, saving that if he be a horse he must be ridden two hours in the market or fair, between ten and five o'clock, and tolled for in the toll book, and the seller must bring one to avouch his sale, known to the toll book keeper, or else the sale bindeth me not. And for any other goods, where the sale in a market or fair shall bar the owner, being not the seller of his property, it must be sale in a market or fair where usually things of that nature are sold. As for example: if a man steal a horse, and sell him in Smithfield, the true owner is barred by this sale; but if he sell the horse in Cheapside, Newgate, or Westminster Market, the true owner is not barred by this sale, because these markets are usual for flesh, fish, &c., and not for horses. So, whereas, by the custom of London, in every shop there is a market all the days of the week, saving Sundays and holidays. Yet if a piece of plate or jewel that is lost, or chain of gold or pearl that is stolen or borrowed, be sold in a draper's or scrivener's shop, or any others but a goldsmith, this sale barreth not the true owner, et sic in similibus. Yet by stealing alone of goods the thief getteth not such property, but that the owner may seize them again wheresoever he findeth them; except they were sold in fair or market, after they were stolen, and that bona fide without fraud. But if the thief be condemned of the felony, or outlawed for the same, or outlawed in any personal action, or have committed a forfeiture of goods to the crown, then the true owner is without remedy. Nevertheless, if fresh after the goods were stolen, the true owner maketh pursuit after the thief and goods, and taketh the goods with the thief, he may take them again. And if he make no fresh pursuit, yet if he prosecute the felon so far as a justice requireth, that is, to have him arraigned, indicted, and found guilty (though he be not hanged, nor have judgment of death,) or have him outlawed upon the indictment; in all these cases he shall have his goods again, by a writ of restitution to the party in whose hands they are. IV. By waving of goods. By waving of goods a property is gotten thus. A thief having stolen goods being pursued, flieth away and leaveth the goods. This leaving is called waving, and the property is in the king; except the lord of the manor have a right to it by custom or charter. But if the felon be indicted, adjudged, or found guilty, or outlawed at the suit of the owner of 265A THE USE OF THE LAW. these goods, he shall have restitution of these goods as before. V. By Straying. By straying property in live cattle is thus gotten. When they come into other men's grounds, straying from the owners, then the party or lord into whose grounds or manors they come causeth them to be seized, and a withe put about their necks, and to be cried in three markets adjoining, showing the marks of the cattle; which done, if the true owner claimeth them not within a year and a day, then the property of them is in the lord of the manor whereunto they did stray, if he have all strays by custom or charter, else to the king. VI. Wreck, and when it shall be said to be. By shipwreck property of goods is thus gotten. When a ship laden is cast away upon the coasts, so that no living creature was in it when it began to sink, escapeth to land with life, then all those goods are said to be wrecked, and they belong to the crown if they be found; except the lord of the soil adjoining can entitle himself unto them by custom, or by the king's charter. VII. Forfeitures. By forfeitures goods and chattels are thus gotten. If the owner be outlawed, if he be indicted of felony or treason, or either confess it, or be found guilty of it, or refuse to be tried by peers or jury, or be attainted by judgment, or fly for felony, although he be not guilty, or suffer the exigent to go forth against him, although he be not outlawed, or that he go over the seas without license, all the goods he had at the judgment he forfeiteth to the crown, except some lord by charter can claim them. For in those cases prescripts will not serve, except it be so ancient, that it hath not allowance before the justices in eyre in their circuits, or in the King's Bench in ancient time. VIII. By executorship. By executorship goods are gotten. When a man possessed of goods maketh his last will and testament in writing, or word, and maketh one or more executors thereof, these executors have by the will and death of the parties all the property of their goods, chattels, leases for years, wardships, and extents, and all right concerning those things. Those executors may meddle with the goods, and dispose them before they prove the will, but they cannot bring an action for any debt or duty before they have proved the will. THE USE OF THE LAW. 265B The proving of the will is thus. They are to exhibit the will into the bishop's court, and there they are to bring the witnesses, and there they are to be sworn, and the bishop's officers are to keep the will original, and certify the copy thereof in parchment under the bishop's seal of office, which parchment so sealed, is called the will proved. IX. By letters of administration. By letters of administration property in goods is thus gotten. When a man possessed of goods dieth without any will, there such goods as the executors should have had if he had made a will were by ancient law to come to the bishop of the diocese, to dispose for the good of his soul that died, he first paying his funerals and debts, and giving the rest, ad pios usus. This is now altered by statute laws, so as the bishops are to grant letters of administration of the goods at this day to the wife if she require it, or children, or next of kin; if they refuse it, as often they do, because the debts are greater than the estate will bear, then some creditor, or some other, will take it as the bishop's officers shall think meet. It groweth often in question what bishop shall have the right of proving wills, and granting administration of goods. In which controversy the rule is thus: That if the party dead had, at the time of his death, bona notabilia in divers diocesses of some reasonable value, then the archbishop of the province where he died is to have the probate of his will, and to grant the administration of his goods as the case falleth out; otherwise, the bishop of the diocese where he died is to do it. If there be but one executor made, yet he may refuse the executorship coming before the bishop, so that he hath not intermeddled with any of the goods before, or with receiving debts, or paying legacies. And if there be more executors than one, so many as list may refuse; and if any one take it upon him, the rest that did once refuse may when they will take it upon them, and no executor shall be further charged with debts or legacies than the value of the goods come to his hands. So that he foresee that he pay debts upon record, first debts to the king, then upon judgments, statutes, recognizances, then debts by bond and bill sealed, rent unpaid, servants' wages, payment to head workmen, and, lastly, shop-books, and contracts by word. For if an executor, or administrator pay debts to others before to the king, or debts due by bond before those due by record, or debts 266A THE USE OF THE LAW. by shop-books and contracts before those by bond, arrearages of rent, and servants', or workmen's wages, he shall pay the same over again to those others in the said degrees. But yet the law giveth them choice, that where divers have debts due in equal degree of record or specialty, he may pay which of them he will, before any suit brought against him; but if suit be brought he must pay them that get judgment against him. Any one executor may convey the goods, or release debts without his companion, and any one by himself may do as much as all together; but one man's releasing of debts or selling of goods, shall not charge the other to pay so much of the goods, if there be not enough to pay debts; but it shall charge the party himself that did so release or convey. But it is not so with administrators, for they have but one authority given them by the bishop over the goods, which authority being given to many, is to be executed by all of them joined together. And if an executor die making an executor, the second executor is executor to the first testator. But if an administrator die intestate, then his administrator shall not be executor or administrator to the first. But in that case the bishop, whom we call the ordinary, is to commit the administration of the first testator's goods to his wife, or next of kin, as if he had died intestate. Always provided, that that which the executor did in his lifetime is to be allowed for good. And so if an administrator die, and make his executor, the executor of the administrator shall not be executor to the first intestate; but the ordinary must new commit the administration of the goods of the first intestate again. THE USE OF THE LAW. 266B If the executor or administrator pay debts, or funerals, or legacies of his own money, he may retain so much of the goods in kind, of the testator or intestate, and shall have property of it in kind. X. Property by legacy. Property by legacy is where a man maketh a will and executors, and giveth legacies, he or they to whom the legacies are given must have the assent of the executors, or one of them, to have his legacy, and the property of that lease, or other goods bequeathed unto him, is said to be in him; but he may not enter nor take his legacy without the assent of the executors, or one of them, because the executors are charged to pay debts before legacies. And if one of them assent to pay legacies, he shall pay the value thereof of his own purse if there be not otherwise sufficient to pay debts. But this is to be understood by debts of record to the king, or by bill and bond sealed, or arrearages of rent, or servants' or workmen's wages; and not debts of shop-books, or bills unsealed, or contract by word; for before them legacies are to be paid. And if the executors doubt that they shall not have enough to pay every legacy, they may pay which they list first; but they may not sell any special legacy which they will to pay debts, or a lease of goods to pay a money-legacy. But they may sell any legacy which they will to pay debts, if they have not enough besides. If a man make a will, and make no executors, or if the executors refuse, the ordinary is to commit administration cum testamento annexo, and take bonds of the administrators to perform the will, and he is to do it in such sort as the executor should have done, if he had been named. ************************************************************************ USGENWEB NOTICE: These electronic pages may NOT be reproduced in any format for profit or presentation by any other organization or persons. Persons or organizations desiring to use this material, must obtain the written consent of the contributor, or the legal representative of the submitter, and contact the listed USGenWeb archivist with proof of this consent. ************************************************************************