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

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gaineth a property. This law seemeth to be derived
from this text, Terram dedit Jitiis hominum, which
is to be understood, to those that will till and ma-
nure 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 : :
days, and is not nc c in England, for that by

the conquest all the land of this nation was in thc
Conqueror's hands, and appropriated unto him ; ex-
cept religious and church lands, and the lands in
Kent, which by composit: left to the former

owners, as the Conqueror found them ; so that r.one
but the bishopricks, churches, and the men ot Ken*,
cnn at tl .:ake ar 'nan from the

conquest, to Liiy lands .nd lands pos-

H



Use of the Law.

sessed without any such title, are in the crown, and
not in him that first entereth; as it is in land left by
Lands left by the sea ; this land belongeth to the King, and not to

nim tnat natn the lands next adjoining, which was
the ancient sea banks. This is to be understood of
the inheritance of lands, namely, that the inheri-
tance cannot be gained by the first entry. But an
estate for another man's life by occupancy, 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 con-
tinuance 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 estate of in-
heritance, but only an estate for another man's life;
which is not descendable to the heir, except he be
specially named in the grant, namely, 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 intitle himself un-
to those lands; and therefore the law preferreth him
that first entreth, 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 go again to whomsoever first entreth 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 a disseisor. Or if any
one die seised of lands, and before his heir doth
eater, one that hath no right doth enter into the



Occupancy,



Use of tte Law.

lands and holdeth them from the right heir, he is
called an abater, and is lawful owner against all
men but the right heir.

And if such person, abater or disseissor, so as the
disseissor 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.

II. PROPERTY of lands by descent is, where a
man hath lands of inheritance and dieth, not dispos-
ing of them, but leaving it to go, as the law casteth
it, upon the heir. This is called a descent in Jaw,
and upon whom the descent is to light, is the ques-
tion. 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 brother, then sisters; if nei-
ther 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 of descent:
solely inherit; but if it come to females, then they threerule8 *
being all in an equal degree of nearness shall inherit
all together, and are called parceners, and all they
make but one heir to the ancestor. 2. That no bro-
ther or sister of the half blood shall inherit to his bro- blood shall not
ther or sister, but as a child to his parents : as for ^otheVor^-
example, if a man have two wives, and by either ter, but only as
wife a son, the eldest son over-living his father, is * a c r h ^ s . to his

H 2



100 Use of the Law.

to be preferred to the inheritance of the father, being
fee-simple ; but if he entreth 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 brother had died, or had not entered in the
life of the father, either by such entry or convey-
ance, 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.
Descent. The third rule about descents : The 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 cer- customs of some particular places : as namely, the
tain places. cus toms 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, the custom alloweth
the youngest son to inherit, and so the youngest
daughter. The custom of Kent, is called Gavel-
kind. The custom of boroughs, Burgh-English.

And there is another note to be observed in fee-
simple inheritance, and that is, that every heir hav-
ing 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 an-
cestors from whom the inheritance descendeth ; and
these acts are collateral incumbrances, and the rea-
son of this charge is, Qui sentit commodum, sentire,
Every heir hav- cltbet et Incominoduni sivc onus. As for example, if
bound"by S the a man bind himself and his heirs in an obligation, or
binding acts of do covenant by writing for him and his heirs, or do

his ancestors, if r i i i i i i

/he be named, grant an annuity lor nun and his heirs, or do make a



Use of the Law. 101

warranty of land, binding him and his heirs to war-
ranty : in all these cases the law chargeth the heir
after the death of the ancestor with this obliga-
tion, 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 ; other-
wise the heir is not to be touched. Secondly, that Dyer, m,
some action must be brought against the heir, whilst Plowd -
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; ex-
cept the land was by fraud conveyed away of purpose
to prevent the suit intended against him. Thirdly, Oyr, 149.
that no heir is farther to be charged than the value O f plowd -
the land descended unto him from the same ancestor
that made the instrument of charge, and that land Day and Pepp's
also, not to be sold out-right for the debt, but to be cafc *
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 Heir charged
set down the true quantity of his inheritance de- for his false
scended, and so submit himself therefore, as the law p
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 be now charged by his false plea of his
own lands, goods, and body, to pay the hundred
pound, although the ten acres be not worth ten
pound.



et vaitum.



102 Use of the Law.

property of ni. PROPERTY of lands by escheat, is where the

lands by ,. , . . r . . . J . . . ,

escheat. owner died seised or the lands m possession without

Jcheat auses f C ^^ or Ot ^ ier heir, thereby the land, for lack of
"'Bastardy. other heir, is said to escheat to the lord of whom it
2. Attainder of i s holder). This lack of heir happeneth principally

treason, feloi.y. ' ^,. 1 . r , r ,. r . J

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 any man attainted
of treason, although it be his own child.

ufasmfind- U P on attainder of treason the King is to have the
tieth the King, land, although he be not the lord of whom it is held,
btnot h hoTd d en because it is a royal escheat. But for felony it is not
of him: other- so, for there the King is not to have the escheat,
wise in auain- except the land be holden of him : and yet where

oer 01 leiony, i i IIT r i ITT-' t

etc. for there the land is not holden or him, the King is to have

the Iand for a y ga r and a d ?y nexl ensuin s the J. uc! s-

ment of the attainder, with a liberty to commit all
manner of waste all that year in houses, gardens,
ponds, lands, and woods.

in escheats. j n these escheats two thing's are especially to be

i!The e mTnner observed ; the one is, the tenure of the lands, be-
of the attainder, cause it directeth the prerson to whom the escheat
belongeth, namely, the lord of the manor of whorn
the land is holden. 2. The manner of such attainder
which draweth with it the escheat. Concerning the
tenure of lands, it is to be understood, that all lands
are holden of the crown either mediately or imme-
diately, and that the escheat appertained! to the
immediate lord, and not to the mediate. The reason
why all land is holden of the crown immediately, or
by mesne lords, is this :

* The Con- ' The *Conqtieror got by right of conquest all the
t^Tiandfo'fttV^rid of the realm into his own hands in demesne,
realm into his taking from every man all estate, tenure, property,
rents 6 " 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 re-
first instituted, tribxition of rents, or services, or both, to him and to
his heirs ; which reservation is that which is called
the tenure of land.



Use of the Law. 103

In which reservation he had four institutions, The reserva-
exceedins: politic and suitable to the state of a tlon . in kni s ht '

service.

conqueror.

First, Seeing his people to be part Normans, and K Marriage of
part Saxons, the Normans he brought with him, the wards.*
the Saxons he found here; he bent himself to con-



join them by marriages in amity, and for that purpose mage and fealty.
ordained, that if those of his nobles, knights, and^J n nmer
gentlemen, to whom he gave great rewards of lands, The policy of
should die, leaving their heir within age, a male %
within twenty-one, and a female within fourte en tion of services.
years, and unmarried, then the King should have
the bestowing of such heirs in marriage in such a
family, and to such persons as he should think meet ;
which interest of marriage went still implied, and
doth at this day in every tenure called knight's
service.

The second was, to the end that his people should Reservation
still be conserved in warlike exercises, and able for JjJ^
his defence. When therefore he gave any good w$e of
portion of lands, that might make the party of f?d serve

*. ... . . . i i 1 him himself

abilities or strength, he withal reserved this service, when the King
that that party and his heirs having such lands, should wcut to war *
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 per*
son, 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 ne-
cessaries, 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.



104- Use of the Law.

s. institution of * The third institution was, that upon every

the Conqueror c . J ,

was, that his ot land the King reserved a vow and an oath to bind

tenants by t ^ e part y to ftjg fafa an( j l oya l t y : that VOW Was

knight s service r. , / / '

vow, calJed homage, the oath realty. Homage is to be

i. Homage. done kneeling, holding his hands between the

2* JbCiiity* . r* i i i * * i T"^ i v

knees or the lord, saying in the rrench 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.

4. institution -|- The fourth institution was, that for recognition

niti S onof thc S ~f tne King's bounty by every heir succeeding his

King's bounty, ancestor in those knight's service lands, the King

pI^onTyear's should have primer seisin of the lands, which is one

profit of the year's profit of the land ; and until this be paid, the

JSJi-tSS Kin g 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.

Knight's ser- These before-mentioned be the rights of the
fff^- tenure, called knight's service in capite, which is as
. TC- much to say, as tenure de persona regis ; and caput
bein g the ctuefest part of the person, it is called a
to pay relief at tenure in capite, or in chief. And it is also to be
of notec ^> tnat as ^is tenure inccipite by knight's service
which was one generally was a great safety to the crown, so also
^ e Conqueror instituted other tenures in capite ne-
cessary to his estate; as namely, he gave divers
lands to be holden of him by some special service

* Aid money to make the King's eldest "son a knight, or to
marry his eldest daughter, is likewise due to his Majesty from
every one of his tenants in knight's service, that hold by a whole
fee 2os. and from every tenant in socage, if his land be worth
twenty pound per annum zos.

+ 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 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 5 which assessment, is called escuage.



Use of the Law. 105

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 be called
tenures by grand serjeanty. Also he provided upon Grand ser-
the first gift of lands to have revenues by continual jea
service of ploughing his land, repairing his houses, j
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 copite of the
King, but they are not by knight's service, because
they required no personal service, but such things
as the tenant may, hire another to do, or % provide for
his money. And this tenure is called a tenure by The institution
socage in capite, the word soca signifying; tfa ^j^diLt
plough ; howbeit in this latter time, the service of ft is now turned
ploughing the land, and of harvest works, is turned ^. m<
into money-rent, for that the Kings do not keep their
demesne in their own hands, as they were wont to
do ; yet what lands were de antique dominio corona,
it well appeareth in the records of the exchequer
called the book of Doomsday. And the tenants in
ancient demesne have many immunities and pri-
vileges 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 capile, as well that by socage, as
the others by knight's service, have this property ;
that the tenants cannot alien their lands without
licence of the King ; if they do, the King is to have
a fine for the contempt, and may seize the 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 hold them, for which the
King was to have those special services done him,
without the King's leave ; this licence and fine, as
it is now digested, is easy and of course.

There is an office called the office of alienation, office of aliens-
where any man may have a licence at a reasonable t ! ,"'

. *. J - 'A licence of ali-

rate, that is, at the third part ot one year s value of enation is the



206 Uses of the Law.

^V^va-^ 6 ^ anc ^ m derat.ely rated. A tenant in capiieby
of The* Jnd knight's service or grand serjeanty, was restrained
^v 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.

Aid, what. And to this tenure by knight's service in chief was
knight****- incident, that the King should have a certain sum
vvMincaflne of money called aid, due, to be ratably levied

paid it to make 11,1 i.* 1 i ,1

the King's amongst all those tenants proportionably to their
eldest son a lands, to make his eldest son a knight, or to marry

knight, OT to V J i j j . r

marry his eldest HIS eldest daughter.

daughter And it is to be noted, that all those that hold

Tenants by so- 1 i i T r 11

tage>ca//W. lands by the tenure or socage in capite, although
not by knight's service, cannot alien without licence,
and they are to sue livery, and pay primer seisin,
but not to be in. ward for body or land.

How manors By example and resemblance of the King's policy
were at first j n these institutions of tenures, the great men and

created. r ^ i TIIIM

Manors created gentlemen or this realm did the like so near as they
bygreatmenin cou ] c | as f or example, when the King had given to

imitation of the o 8

King in the in- any or them two thousand acres ot land, this party
stltutlons fte * purposing in this place to make a dwelling, or, as

nures. A ma- < V r & . IT . . . &

mere, the word the old word is, his mansion-house, or his manor-
manor,Kmght's nouse) fa Devise how ne might make his land a



service tenure



reserved tocom- complete habitation to supply him with all manner
mon persons. o f necessaries ; and for that purpose, he would give
of the uttermost parts of those two thousand acres,
100 or 200 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
Relief is 5j. to wars, adding vow of homage, and the oath of* fealty,
L e n P ant d b yeveiTwardshi P' m . arria ge, and relief. This relief is to pay
Knight'&fervice five pound for every knight's fee, or after that rate
tohisiord, etc. or more or less at the entrance of every heir; which
tenant so created, and placed, was and is to this
day called a tenant by knight's service, and not by

* 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.



Use of the Law. 107

his own person, but of his manors ; of these he
might make as many as he would. Then this lord Socage tenure
would provide that the land which he was to keep^ rbt
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 plough-
ing 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 other-
wise, or to give him for his provision, capons, hens,
pepper, cummin, roses, gillirlowers, spurs, gloves,
or the like : or to pay to him a certain rent, and to
be sworn to be his faithful tenant, which tenure was
called a socage tenure, and is so to this day; how-
beit most of the ploughing and harvest service are
turned into money rents.

* The tenants in socage at the death of every Relief of tenant
tenant were to pay relief, which was not as knight'Sy^^;,. ^
service is, five pound a knight's fee : but it was, and no wardship, or
so is still, one year's rent of the land ; and no ward- o^t

ship or other profit to the lord. The remainder ojf the tenant,
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 or the remem-
brances 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 vnienage or tc-
in truth bondmen at the beginning : but having ob- nure ^ w of

r , ~ . . i i court-roll.

tamed freedom or their persons, and gamed a custom
by use of occupying their lands, they are now called
copy-holders, and are so privileged that the lord
cannot put them 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

* All money and escuage money is likewise due unto the lord*
of their tenants.



10S Use of the Law.

wholly, both for widows estates, fines, herriots,
forfeitures, and all other things.

Court baron, Manors being in this scrt made at the first, reason

ith of was that the JoVd of the manor should hold a court,

which is no more than to assemble his tenants to-

gether 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, copy-

holds, or the like, that had happened unto him ;

which information is called a presentment, and then

his bailiff was to seise and distrain for those duties if

they were denied or withholden, which is called a

court baron : and herein a man may sue for any

debt or trespass under forty shillings value, and the

freeholders are to judge of the cause upon proof

Smt to thecourt produced upon both sides. And therefore the free-

^^ or t fj n t c e i _- holders of these manors, as incident to their tenures,

nureofthefrce-do hold by suit of court, which is to come to the



Online LibraryFrancis BaconThe works of Francis Bacon, baron of Verulam, viscount St. Alban, and lord high chancellor of England (Volume 4) → online text (page 9 of 46)