Francis Bacon.

The works of Francis Bacon, baron of Verulam, viscount St. Alban, and lord high chancellor of England (Volume 4) online

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of rent, and servants or workmens wages, he shall
pay the same over again to those others in the said

Debts due in But yet the law giveth them choice, that where
re"ord, e ?he e cx- divers have debts due in equal degree of record or
ccutor may pay S p ec i a ]ty he may pay which of them he will, be-

\vhich of them r r '' . J r , * , , . u , -r . ,

he please before fore any suit brought against him; but it suit be
suit com- brought he must first pay them that get judgment

menced. L i

against him.

Any one exe- Any one executor may convey the goods, or re-
muchTs a aii d to- ' ease debts without his companion, and any one by
gether: but if himself may do as much as all together; but one
Ls^andaVeTs man>s releasing of debts or selling of goods, shall
wanting, he not charge the other to pay so much of the goods, if

chir g s ed! lbe tllere be not enou gh to P a 7 debts > DUt it: sh a11 charge

the party himself that did so release or convey.
otherwise of But it is not so with administrators, for they have
administrators. ^ ut one au tbority given them by the bishop over
the goods, which authority being given to many is
to be executed by all of them joined together.
S And tf an executor die making an executor, the
the se- second executor is executor to the first testator.
TnK execut r/ But if an administrator die intestate, then his ad-

* tii t i *

tor to the first mimstrator shall not be executor or administrator to

But^otherwise tne ^ rst : but m t ^ at case ^ e ^i sno P> whom we call
if the adminis- the ordinary, is to commit the administration of the
int^hif ex n ecu" first testator's goods to his wife, or next of kin, as if he
tor, or if admi- had died intestate ; always provided, that that which
com r mit ted b of the executor did in his life-time, is to be allowed
his goods. 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 ordi-
nary must new commit the administration of the

In both cases r .

the ordinary goods of the first intestate again.

shall commit jf ^g execu tor or administraor pay debts, or fu-

admnnstration r . . i

of the goods of nerals, or legacies or his own money, he may retain
the first intes- so muc h o f the goods in kind, of the testator or in*
Khutors or testate, and shall have property of it in kind,


may retain. ^^ -^ , ,

Executors or *- Property by legacy.

administrators Property by legacy, is where a man rnaketh a will

Use of the Law. 131

and executors, and giveth legacies, he or they to ma r retain;
whom the legacies are given must have the assent ecutorsfare 6
of the executors, or one of them, to have his legacy ; charged to pay
and the property of that legacy or other goods be- ^legacies. C "
queathed 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 lega-
cies. 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 Legacies are to
the Kin^, or by bill and bond sealed, or arrearages b A pzl ? b f ore

- &' . , o debts by shop-

or rent, or servants or workmens wages ; and not books, bills
debts of shop-books, or bills unsealed, or contract ""^^ r
by word ; for before them legacies are to be paid. word.

And if the executors doubt that they shall not Executor may
have enough to pay every legacy, they may p^^SfSSmSL
which they list first ; but they may not sell any spe- if the executors.
cial legacy which they will to pay debts, or a lease ^^[f ***
of goods to pay a money legacy. But they may legacy to pay
sell any legacy which they will to pay debts, if they debts>
have not enough besides.

If a man make a will and make no executors, or when a will is
if the executors refuse, the ordinary is to commit ^^JJ^ n
administration, cum testamento amiexo, and take named,
bondsof the administrators to perform the will, and Sl'
he is to do it in such sort, as the executor should have
done, if he had been named. ant

[ 132 ]



or THE








And published from a MS. in the Inner -Temple Library.

The sundry ALL the finances or revenues of the imperial crown
v? 6 ^ ^ s rea ^ m f England, be either extraordinary or

Those extraordinary, be fifteenths and tenths, sub-
sidies, loans, benevolences, aids, and such others of
that kind, that have been or shall be invented for sup-
portation of the charges of war ; the which as it is
entertained by diet, so can it not be long maintained
by the ordinary fiscal and receipt.

Of these that be ordinary, some are certain and
standing, as the yearly rents of the demesne or lands;
being either of the ancient possessions of the crown,
or of the later augmentations of the same.

Likewise the fee-farms reserved upon charters
granted to cities and towns corporate, and the blanch
rents and lath silver answered by the sheriffs. The
residue of these ordinary finances be casual, or uncer-
tain, as be the escheats and forfeitures, the customs,
butlerage and impost, the advantages coming by the
jurisdiction of the courts of record and clerks of
the market, the temporalities of vacant bishoprics, the
profits that grow by the tenures of lands, and such
like, if there any be.

And albeit that both the one sort and other of these
be at the last brought unto that office of her majesty's

An Historical Account of the Office of Alienations. 133

exchequer, which we, by a metaphor, do call the pipe, The pipe,
as the civilians do by a like translation name it FiscuS,
a basket or bag, because the whole receipt is finally
conveyed into it by the means of divers small pipes or
quills, as it were water into a great head or cistern ;
yet nevertheless some of the same be first and imme-
diately left in other several places and courts, from
whence they are afterwards carried by silver streams,
to make up that great lake, or sea, of money.

As for example, the profits of wards and their lands
be answered into that court which is proper for them ;
and the fines for all original writs, and for causes that
pass the great seal, were wont to be immediately paid
into the hanaper of the chancery : howbeit now of The hana-
Jate years, all the sums which are due, either for any per
writ of covenant, or of other sort, whereupon a final
concord is to be levied in the common bench, or for
any writ of entry, whereupon a common recovery is
to be suffered there ; as also all sums demandable,
either for licence of alienation to be made of lands
holden in chief, or for the pardon of any such alien-
ation, already made without licence, together with
the mean profits that be forfeited for that offence and
trespass, have been stayed in the way to the hanaper,
and been lett to farm, upon assurance of three hun-TMs office
dred pound of yearly standing profit, to be increased ^f 'the
over and above that casual commodity, that was found hanap<.-t.
to be answered in the hanaper for them, in the ten
years, one with another, next before the making of
the same lease.

And yet so as that yearly rent of increase is now
still paid into the hanaper by four gross portions, not
altogether equal, in the four usual open terms of St.
Michael, and St. Hilary, of Easter, and the Holy Tri-
nity, even as the former casualty itself was wont to be,
in parcel meal, brought in and answered there.

And now forasmuch as the only matter and subject The name
about which this farmer or his deputies are employed, 01 theo
isto rate or compound the sums of money payable to
her majesty, for the alienation of lands that are either
made without licence, or to be made by licence, if

i 3 4 An Historical Account of the Office of Alienations.

they be holden in chief, or to pass for common reco-
very, or by final concord to be levied, though they be
not so holden, their service may therefore very aptly
and agreeably be termed the office of compositions for
alienations. Whether the advancement of her ma-
jesty's commodity in this part of her prerogative, or
the respect of private lucre or both, were the first
motives thus to dissever this member, and thereby as it
were to mayhem the chancery, it is neither my part
nor purpose to dispute.

The scope But for a full institution of the service as it now
course, and standeth, howsoever some men have not spared to
the parts speak hardly thereof, I hold worthy my labour to set

thereof. -, r r 11 ill.

down as folio weth.

First, That these fines, exacted for such alienations,
be not only of the greatest antiquity, but are also good
and reasonable in themselves : secondly, that the mo-
dern and present exercise of this office, is more com-
mendable than was the former usage: and lastly, that
as her majesty hath received great profit thereby, so
may she, by a moderate hand, from time to time reap
the like, and that without just grief to any of her

The first As the lands that are to be aliened, be either imme-
part of this ^lately holden in chief, or not so holden of the queen :
so be these fines or sums respectively of two sundry
sorts. For upon each alienation of lands, immediately
held of her majesty in chief, the fine is rated here, either
upon the licence, before the alienation is made, or else
upon the pardon when it is made without licence. But
generally for every final concord of lands to be levied
upon a writ of covenant, ivarrantia chartce, or other
writ, upon which it may be orderly levied, the sum is
rated here upon the original writ, whether the lands
be held of the queen, or of any other person ; if at
the least the lands be of such value, as they may yield
the due fine. And likewise for every writ of entry,
whereupon a common recovery is to be suffered, the
queen's fine is to be rated there upon the writ original,
if the lands comprised therein be held of her by the


An Historical Account of the Office of Alienations. 135

tenure of her prerogative, that is to say, in chief, or of
her royal person.

So that I am hereby inforced, for avoiding of con- The king's
fusion, to speak severally, first of the fines for alien- ^^^id
ation of land held in chief, and then of the fines upon never alien
the suing forth of writs original. That the king's ^ h c fc ut lj
tenant in chief could not in ancient time alien his te-
nancy without the king's licence, it appeareth by the
statute, 1 E. III. cap. 12. where it is thus written:
u Whereas divers do complain, that the lands, holden
" of the king in chief, and aliened without licence,
" have been seized into the king's hands for such
cc alienation, and holden as forfeit : the king shall not
cc hold them as forfeit in such a case, but granteth
cc that, upon such alienations, there shall be reasonable
" fines taken in the chancery by due process."

So that it is hereby proved, that before this statute,
the offence of such alienation, without licence, was
taken to be so great, that the tenant did forfeit the
land thereby ; and consequently that he found great
favour there by this statute, to be reasonably fined for
his trespass.

And although we read an opinion 20 lib. Assls. parL
17, el 26. Ass. par I. 37. which also is repeated by
Hankf. 14 H. 4./b/. 3. in which year Magna Charta
was confirmed by him, the king's tenant in chief
might as freely alien his lands without Iicence 3 as
might the tenant of any other lord : yet forasmuch as
it appeareth not by what statute the law was then
changed, I had rather believe, with old judge Thorpe
and late justice Stanford, that even at the common
law, which is as much as to say, ns from the begin-
ning of our tenures, or from the beginning of the
English monarchy, it was accounted an offence in the
king's tenant in chief, to alien without the royal and
express licence.

And I am sure, that not only upon the entering, or
recording, of such a fine for alienation, it is wont to"
bp said pro transgressione in hac parte facta ; but that
you may also read amongst the records^in the Tower,
Fines 6 Hen. Keg. 3, Memo. 4. a precedent of a

136 An His lor leal Account of the Office of Alienations .

capias in manum regis terras alienatas sine licenfia
regis, and that namely of the manor of Coselescombe
in Kent, whereof Robert Cesterton was then the king's
tenant in chief. But were it that, as they say, this
began first 20 Hen. III. yet it is above three hundred
and sixty years old, and of equal if not more anti-
quity than Magna Charta itself, and the rest of our
most ancient laws; the which never found assurance
by parliament, until the time of King Edw. J. who
may be therefore worthily called our English Solon or

The fine for Now therefore to proceed to the reason and equity
moderate. " ^ exacting these fines for such alienations, it standeth
thus : when the king, whom our law understandeth to
have been at the first both the supreme lord of all the
persons, and sole owner of all the lands within his
dominions, did give lands to any subject to hold them
of himself, as of his crown and royal diadem, he
vouchsafed that favour upon a chosen and selected
man, not minding that any other should, without his
privity and good liking, be made owner of the same.
And therefore his gift has this secret intention inclosed
within it, that if his tenant and patentee shall dispose
of the same without his kingly assent first obtained,
the lands shall revert to the king, or to his successors,
that first gave them : and that also was the very cause,
as I take it, w r hy they were anciently seized into the
king's hands as forfeited by such alienation, until the
making of the said statute, 1 Edw. III. which did
qualify that rigour of the former law.

Neither ought this to seem strange in the case of the
king, when every common subject, being lord of lands
which another holdeth of him, ought not only to have
notice given unto him upon every alienation of his
tenant, but shall, by the like implied intention, re-have
the lands of his tenants dying without heirs, .though
they were given out never so many years agone, and
have passed through the hands of howsoever many
and strange possessors.

Not without good warrant, therefore, said Mr. Fitz*
herbert in his Nat. Brev. fol. 147. that the justices

An Historical Account of the Office of Alienations. 1 37

ought not wittingly to suffer any fine to be levied of
lands holden in chief, without the king's licence.
And as this reason is good and forcible, so is the
equity and moderation of the fine itself most open and
apparent ; for how easy a thing is it to redeem a for-
feiture of the whole lands for ever with the profits of
one year, by the purchase of a pardon? Or other-
wise, how tolerable is it to prevent the charge of that
pardon, with the only cost of a third part thereof,
timely and beforehand bestowed upon a licence ?

Touching the king's fines accustomably paid for the Th .e anti-
purchasing of writs original, I find no certain begin- mudenubn

nine: of them, and do therefore think that they also of fines U P-
. * , i i i i i i . on wilts on-

grew up witn the chancery, which is the shop wherein g j na j.

they be forged ; or, if you will, with the first ordinary
jurisdiction and delivery of justice itself.

For when as the king had erected his courts of or-
dinary resort, for the help of his subjects in suit one
against another, and was at the charge not only to
wage justices and their ministers, but also to appoint
places and officers for safe custody of the records that
concerned not himself; by which means each man
might boldly both crave and have law for the present,
and find memorials also to maintain his right and re-
covery, for ever after, to the singular benefit of himself
and all his posterity; it was consonant to good reason,
that the benefited subject should render some small
portion of his gain, as well towards the maintenance
of this his own so great commodity, as for the sup-
portation of the king's expence, and the reward of
the labour of them that were wholly employed for his

And therefore it was well said by Littleton, 34 //. Litt/HH.i.
6.fol. 38. that the chancellor of England is not bound 6 t ' 1 ' 38 *
to make writs, without his due fee for the writing and
seal of them. And that, in this part also, you may
have assurance of good antiquity, it is extant among
the records in the Tower, 2 //. III. Alcmbr. 6. that
Simon Hales and others gave unto him their king,
mum palfrcdum pro summonendo Richardo t filio et
Willidmi de Hawed, quod tcneatjinemfactum

138 An Historical Acco unt of the Office of Alienations.

cor am justiciariis apud Northampton, inter dictum
Willielmnm et patrem dicti Arnoldi defeodo in Barton.
And besides that, in oblatis de aim. 1, 2, <3f 7. regis
Johannis, fines were diversely paid to the king upon
the purchasing writs of mort d'auncestor, dower, pone,
to remove pleas for inquisitions, trial by juries, writs
of sundry summons, and other more.

Hereof then it is, that upon every writ procured for
debt or damage, amounting to forty pounds or more,
a noble, that is, six shillings and eight pence, is, and
usually hath been paid to fine ; and so for every hun-
dred marks more a noble : and likewise upon every
writ called a prxcipe of lands, exceeding the yearly
value of forty shillings, a noble is given to a fine ; and
for every other five marks by year, moreover another
20 Rich. n. noble, as it is set forth 20 Rich. II. abridged both by
justice Fitzherbert, and justice Brooke; and may also
appear in the old Natura Brevium y and the Register,
which have a proper writ of deceipt, formed upon the
case, where a man did, in the name of another, pur-
chase such a writ in the chancery without his know-
ledge and consent.

And herein the writ of right is excepted and passeth
freely ; not for fear of the words in Alagna Charta,
Nulli vendemus justitiam i'el rectum, as some do phan-
tasy, but rather because it is rarely brought ; and then
also bought dearly enough without such a fine, for that
the trial may be by battle to the great hazard of the

The like exemption hath the writ to enquire of a
man's death, which also, by the twenty-sixth chapter
of that Magna Charta, must be granted freely, and
without giving any thing for it: which last I do rather
note, because it may be well gathered thereby, that
even then all those other writs did lawfully answer
their due fines : for otherwise the like prohibition
would have been published against them, as was in
this case of the inquisition itself.

I see no need to maintain the mediocrity and easiness
of this last sort of fine, which in lands exceedeth not
the tenth part of one year's value, and in goods the

An Historical Account of the Office of Alienations. 139

two hundredth part of the thing that is demanded by
the writ.

Neither has this office of ours * originally to meddle * Rf z* f > or
with the fines of any other original writs, than of such ofTuTnL
only as whereupon a fine or concord may be had and im P jrt

, / . i i 11 r i seems to be

levied 5 which is commonly the writ of covenant, and omitted
rarely any other. For we deal not with the fine of hure
the writ of entry of lands holden in chief, as due upon
,the original writ itself; but only as payable in the
nature of a licence for the alienation, for which the
third part of the yearly rent is answered ; as the sta-
tute 32 II. VIII. cap. 1. hath specified, giving the
direction for it; albeit now lately the writs of entry
be made parcel of the parcel ferm also; and therefore
I will here close up the first part, and unfold the
.second. x

Before the institution of this ferm and office, no The second
writ of covenant for the levying any final concord, no P ait ." f tlna

r c rr r truatliC.

writ of entry for the suffering of any common reco-
very of lands holden in chief, no doquet for licence to
alien, nor warrant for pardon of alienation made,
could be purchased and gotten without an oath called
an affidavit, therein first taken either before some jus- AH fine?
tice of assize, or master of the chancery, for the true ll i )j:l oathi
discovery of the yearly value of the lands comprised
in every of the same : in which doing, if a man shall
consider on the one side the care and severity of the
law, that would not be satisfied without an oath; and
on the other side the assurance of the truth to be had
by so religious an affirmation as an oath is, he will
easily believe that nothing could be added unto that
order, either for the ready dispatch of the subject, or
for the uttermost advancement of the king's profit.
But quid verba audiam* cum facia mdeamf Much
peril to the swearer, and little good to our sovereign
hath ensued thereof. For on the one side the justices
of assize were many times abused by their clerks,
that preferred the recognitions of final concords taken
in their circuit : and the masters of the chancery were
often overtaken by the fraud of solicitors and attor-
neys, that followed their clients causes here at West-

1 4-O An Historical Account of the Office of Alienations.

minster ; and on the other side, light and lewd per-
sons, especially, that the exactor of the oath did
neither use exhortation, nor examining of them for
taking thereof, were as easily suborned to make an
affidavit for money, as post-horses and hackneys are
taken to hire in Canterbury and Dover way : inso-
much that it was usual for him that dwelt in South-
wark, Shoreditch, or Tothil-Street, to depose the
yearly rent or valuation of lands lying in the north,
the west, or other remote part of "the realm, where
either he never w r as at all, or whence he came so
young, that littie could he tell what the matter
meaned : And thus consiietudinern peccandi fecit mul-
tiludo peccant him. For the removing of which cor-
ruption, and ot some others whereof I have long since
particularly heard, it was thought good that the justice
of assize should be intreatcd to have a more vigilant
eye upon their clerks writing ; and that one special
master of the chancery should be appointed to reside
in this office, and to take the oaths concerning the
matters that come hither : who might not only reject
such as for just causes were unmeet to be sworn, but
might also instruct and admonish in the weight of an
oath, those others that are fit to pass and perform it :
and forasmuch as thereby it must needs fall out very
often, that either there was no man ready and at hand
that could with knowledge and good conscience un-
dertake the oath, or else, that such honest persons as
were present, and did right well know the yearly value
of the lands, would rather choose and agree to pay a
reasonable fine without any oath, than to adventure the
uttermost, which, by the taking of their oath, must
come to light and discovery : it was also provided,
that the fermour, and the deputies, should have power
to treat, compound and agree with such, and so not
exact any oath at all of them.

How much this sort of finance hath been increased
by this new device, I will reserve, as I have already
plotted it, for the last part of this discourse : but in
the mean while I am to note first, that the fear of
common perjury, growing by a daily and over usual ac*

An Historical Account of the Office of Alienations. 1 4 1

quaintance with an oath, by little and little razeth out
that most reverend and religious opinion thereof, which
ought to be planted in our hearts, is hereby for a great
part cut off and clean removed : then that the subject
yieldeth little or nothing more now than he did before,
considering that the money, which was wont to be
saved by the former corrupt swearing, was not saved
unto him, but lost to her majesty and him, and found
only in the purse of the clerk, attorney, solicitor, or
other follower of the suit : and lastly, that the client,
besides the benefit of retaining a good conscience in
the passage of this his business, hath also this good
assurance, that he is always a gainer, and by no means
can be at any loss, as seeing well enough, that if the
composition be over-hard and heavy for him, he may
then, at his pleasure, relieve himself by recourse to his
oath ; which also is no more than the ancient law and

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