Page images
PDF
EPUB

All ficas

upon

called an affidavit, therein first laken

creased by this new device, I will reserve, as I either before some justices of assize, catha have already plotted it, for the last part of this or master of the chancery, for the true discovery discourse: but in the mean while I am to note of the yearly value of the lands comprised in first, that the fear of common perjury, growing every of the same; in which doing, if a man by a daily and over-usual acquaintance with an shall consider on the one side the care and seve- oath, by little and little raiseth out that most rity of the law, that would not be satisfied without reverend and religious opinion thereof, which an cath; and, on the other side, the assurance of ought to be planted in our hearts, is hereby for a the truth to be had by so religious an affirmation great part cut off and clean removed: then that as an oath is, he will easily believe that nothing the subject yieldeth liule or nothing more now could be added unto that order, either for the than he did before, considering that the money, ready despatch of the subject, or for the uttermost which was wont to be saved by the former corrupt advancement of the king's profit. But quid ver- swearing, was not saved unto him, but lost to her ba audiam, cum facta videam? Much peril to the majesty and him, and found only in the purse of swearer, and little good to our sovereign hath the clerk, attorney, solicitor, or other follower of ensued thereof. For, on the one side, the jus- the suit; and, lastly, that the client, besides the tices of assize were many times abused by their benefit of retaining a good conscience in the clerks, that preferred the recognition of final con- passage of this his business, hath also this good cords taken in their circuit; and the masters of assurance, that he is always a gainer, and by no the chancery were often overtaken by the fraud means can be at any loss, as seeing well enough, of solicitors and attorneys, that followed their that if the composition be over-hard and heavy clients' causes here at Westminster; and, on the for him, he may then, at his pleasure, relieve himother side, light and lewd persons, especially, self by recourse to his oath; which also is no that the exactor of the oath did neither use ex- more than the ancient law and custom of the realm hortation, nor examining of them for taking there- hath required at his hands. And the selfsame of, were as easily suborned to make an affidavit thing is, moreover, that I may shortly deliver it for money, as post-horses and hackneys are taken by the way, not only a singular comfort to the exeto hire in Canterbury and Dover way; insomuch cutioners of this office, a pleasant seasoning of all that it was usual for him that dwelt in South- the sour of their labour and pains, when they shall wark, Shoreditch, or Tothill Street, to depose the consider that they cannot be guilty of the doing yearly rent or valuation of lands lying in the of any oppression or wrong; but it is also a most north, the west, or other remote part of the realm, necessary instruction and document for them, that where either he never was at all, or whence he even as her majesty hath made them dispensators came so young, that little could he tell what the of this her royal favour towards her people, so it matter meaned. And thus consuetudinem peccandi behoveth them to show themselves peregrinatores, fecit multitudo peccantium. For the removing of even and equal distributors of the same; and, as which corruption, and of some others whereof Ithat most honourable lord and reverend sage have long since particularly heard, it was thought counsellor, the late Lord Burleigh, good that the justice of assize should be en- late lord treasurer, said to myself, to date on the treated to have a more vigilant eye upon their deal it out with wisdom and good writing. clerks' writing; and that one special master of dexterity towards all the sorts of her loving subthe chancery should be appointed to reside in this jects. office, and to take the oaths concerning the mat- But now that it may yet more parti. The part of ters that come hither; who might not only reject cularly appear what is the sum of this cock iler, such as for just causes were unmeet to be sworn, new building, and by what joints and sinews the but might also instruct and admonish in the same is raised and knit together, I must let you weight of an oath, those others that are fit to pass know, that besides the fermour's deputies, which, and perform it; and forasmuch as thereby it must at this day, be three in number, and besides the needs fall out very often, that either there was no doctor of whom I spake, there is also a receiver

, man ready and at hand that could, with know- who alone handleth the moneys, and three clerks, ledge and good conscience, undertake the oath, that be employed severally, as anon you shall or else, that such honest persons as were present, perceive; and by these persons the whole proand did right well know the yearly value of the ceeding in this charge is thus performed. lands, would rather chooso and agree to pay a If the recognition or acknowledg. Proceeding reasonable fine without any onth, than to adven- ment of a final concord upon any writ upon fiores uire the uttermost, which, by the taking of their of covenant finable, for so we call that which oath, must come to light and discovery. It was containeth lands above the yearly value of forty also provided, that the fermour, and the deputies, shillings, and all others we term unfinable, be should have power to treat, compound, and agree taken by justice of assize, or by the chief justice with such, and so not exact any oath at all of them. of the Common Pleas, and the yearly value of

llow much this sort of finance hath been in-'those lands be also declared by affidavit inade

[ocr errors]

Proceeding

hefore the same justice; then is the recognition made either before some such justice, or before and value, signed with the handwriting of that the said doctor, that the lands, comprised in the justice, carried by the cursitor in chancery for writ, be not worth above forty shillings by the that shire where those lands do lie, and by him year, to be taken. And albeit now here can be is a writ of covenant thereupon drawn and no composition, since the queen is to have no fine engrossed in parchment; which, having the same at all for unfinable writs, yet doth the doctor envalue endorsed on the backside thereof, is brought, dorse his name, and cause the youngest, or third together with the same paper that doth warrant clerk, both to make entry of the writ into a third it, into this office; and there first the doctor, con- book, purposely kept for those only writs, and ferring together the paper and the writ, endorseth also to endorse it thus, finis nullus. That done, his name upon that writ, close underneath the it receiveth the names of the deputies, endorsed value thereof; then, forasmuch as the valuation as before, and so passeth hence to the custos brevium thereof is already made, that writ is delivered to as the rest. Upon every docket for license of the receiver, who taketh the sum of money that alienation, or warrant for pardon of alienation, the is due, after the rate of that yearly value, and party is likewise at liberty either to compound endorseth the payment thereof upon the same writ with the deputies, or to make affidavit touching accordingly: this done, the same writ is brought the yearly value; which being known once and to the second clerk, who enterezh it into a several set down, the doctor subscribeth his name, the book, kept only for final writs of covenant, to- receiver taketh the money after the due rate and gether with the yearly value, and the rate of the proportion; the second clerk entereth the docket inoney paid, with the name of the party that made or warrant into the book that is proper for them, the affidavit, and the justice that took it: and at and for the writs of entry, with a notice also, the foot of that writ maketh a secret mark of his whether it passeth by oath or by composition; said entry: lasıly, that writ is delivered to the then do the deputies sign it with their hands, and deputies, who seeing that all the premises be so it is conveyed to the deputy of Mr. Bacon, orderly performed, do also endorse their own clerk of the licenses, whose charge it is to procure names upon the sanie writ, for testimony of the the hand of the lord chancellor, and consequently money received. Thus passeth it from this office the great seal for every such license or pardon. to the custos brevium, from him to the queen's There yet remaineth untouched the silver, then to the chirographer to be engrossed, order that is for the mean profits; for you foute une and so to be proclaimed in the court. But if no which also there is an agreement made affidavit be already made touching the value, then here when it is discovered that any alienation is the writ of covenant brought first to the depu- hath been made of lands holden in chief, without ties, ready drawn and engrossed ; and then is the the queen's license; and albeit that in the other value made either by composition had with them cases, one whole year's profit be commonly without any oath, or else by oath taken before the payable upon such a pardon, yet, where the doctor; if by composition, then one of the depu- alienation is made by devise in a last-will only, ties setteth down the yearly value, so agreed the third part of these profits is there demandable. upon, at the font of the backside of the writ; by special provision thereof made in the statute of which value the doctor causeth one of the clerks | 34 H. VII. c. 5, but yet every way the to write on the top of the backside of the writ, yearly profits of the lands so aliened as the cursitor did in the former, and after that without license, and lost even from the time of the doctor endorseth his own name underneath it, the writ of scire facias, or inquisition thereupon and so passeth it through the hands of the re- returned into the Exchequer, until the time that ceiver

, of the clerk that maketh the entry, and of the party shall come hither to sue forth his charter the deputies, as the former writ did. But if the of pardon for that offence. valuation be made by oath taken before the doctor, In which part the subject hath in time gained then causeth he the clerk to endorse that value double ease of two weighty burdens, that in accordingly, and then also subscribeth he his former ages did grievously press him; the one name as before; and so the writ taketh the same before the institution of this office, and the other course through the office that the others had. sithence; for in ancient time, and of right, as it

And this is the order for writs of is adjudged 46 E. III. Fitzh. forfait 18, the mean covenant that be finable: the like profits were precisely answered after the rate and

whereof was at the first observed, in proportion per diem, even from the time of the the passing of writs of entry of lands holden in alienation made. Again, whereas, before the rechief; saving that they be entered into another ceipt of them in this office, they were assessed by book, especially appointed for them, and for the affidavit from the time of the inquisition found, licenses and pardons of alienations; and the like or scire facias returned, now not so much at any is now severally done with the writs of entry of time as the one-half, and many times not the lands not so holden: which writs of covenant or sixth part of them is exacted. Here, therefore entry not finable, thus it is done : an affidavit is above the rest, is great necessity to show favour

of n.ean profil

34 U. & c. 5.

[ocr errors]
[ocr errors]
[ocr errors][merged small]

Policy for

ruption

The chief clerk.

Inequality of

and merciful dealing ; because it many times hap-' at the least, and sometimes twice so much, before peneth, that either through the remote dwelling he could find the means to be delivered. of the party from the lands, or by the negligence Thus have I run through the whole or evil practice of under-sheriffs and their bailiffs, order of this practice, in the open time arondas the owner hath incurred the forfeiture of eight or of the term; and that the more partiten years' whole profits of his lands, before he cularly and at full, to the end that thereby these cometh to the knowledge of the process that run- things ensuing might the more fully appear

, and neth against him; other times an alienation made plainly bewray themselves: first, that this present without license is discovered when the present manner of exercising of this office hath so many owner of the lands is altogether ignorant that his testimonies, interchangeable warrants, and coun-lands be holden in chief at all: other times, also, ter-rolments, whereof each, running through the some man concludeth himself to have such a hands and resting in the power of so many several tenure by his own suing forth of a special writ of persons, is sufficient to argue and convince all manlivery, or by causeless procuring a license, or par- ner of falsehood; so as, with a general conspiracy don, for his alienation, when in truth the lands be of all those offices together, it is almost impossible not either holden at all of her majesty, or not to contrive any deceit therein: a right ancient and holden in chief, but by a mean tenure in soccage, sound policy, whereupon both the order of the or by knight's service at the most. In which accounts in the Exchequer, and of the affairs of cases, and the like, if the extremity should be her majesty's own household, are so grounded rigorously urged and taken, especially where the and built, that the infection of an evil mind in years be many, the party should be driven to his some one or twain, cannot do any great harm, utter overthrow, to make half a purchase, or more, unless the rest of the company be also poisoned of his own proper land and living.

by their contagion. And, surely, as Cicero said, About the discovery of the tenure in Nullum est tam desperatum collegium, in quo non

chief, following of process for such | unus e multis sit sana mente præditus, Secondly. alienation made, as also about the calling upon that here is great use both of discretion, learning, sheriffs for their accounts, and the bringing in of and integrity; of discretion, I say, for examining parties by seisure of their lands, therefore the first the degrees of favour, which ought to and principal clerk in this office, of whom I had be imparted diversely, and for discern- ralis juritable not before any cause to speak, is chiefly and in a ing the valuations of lands, not in one place or

manner wholly occupied and set on shire, but in each county and corner of the realm;

work. Now, if it do at any time hap- and that not of one sort or quality, but of every checa terobice pen, as, notwithstanding the best en- kind, nature, and degree: for a taste whereof, and

deavour, it may and doth happen, that to the end that all due quality of rates be not the process, howsoever colourably awarded, hath suddenly charged with infidelity, and condemned not hit the very mark whereat it was directed, but for corruption; it is note-worthy, that favour is haply calleth upon some man who is not of right here sometimes right worthily bestowed, not only to be charged with the tenure in chief, that is ob- in a general regard of the person, by which every jected against; then is he, upon oath and other man ought to have a good pennyworth of his own, good evidence, to receive his discharge under the but more especially also and with much distinchands of the deputies, but with a quousque, and tion: for a peer of the realm, a counwith salvo jure dominæ. Usage and deceivable sellor of state, a judge of the land, an manner of awarding process cannot be avoided, officer that laboureth in furtherance of the tenure, especially where a man, having in some

or poor person, are not, as I think, to be measured place both lands holden in chief, and other lands by the common yard, but by the pole of special not so holden, alieneth the laws not holden: grace and dispensation. Such as served in the seeing that it cannot appear by record nor wars, have been permitted, by many statutes, to otherwise, without the express declaration and alien their lands of this tenure, without suing out evidences of the party himself, whether they of any license. All those of the chancery have be the same lands that be holden, or others. claimed and taken the privilege to pass their And, therefore, albeit the party grieved thereby writs without fine; and yet, therefore, do still may have some reason to complain of an untrue look to be easily fined; yea, the favourites in charge, yet may he not well call it an unjust court, and as many as serve the queen in ordivexation; but ought rather to look upon that ease, nary, take it unkindly if they have not more than which in this kind of proceeding he hath found, market measure. where, besides his labour, he is not to expend Again, the consideration of the place above two-and-twenty shillings in the whole or county where the lands do lie, may charge, in comparison of that toil, cost, and care, justly cause the rate or valuation to be the more which he in the case was wont to sustain by the or less; for as the writs too commonly report the writ of certiorari in the Exchequer ; wherein, be- land by numbers of acres, and as it is allowable

, sides all his labour, it did cost him fifty shillings for the eschewing of some dangers, that those

The discharge of him that holdeth not in

ously.

The persos

one

The place

1 E. 3., c. 12,

The manner of that assurance

numbers do exceed the very content and true which no yearly rent is reserved; or to grant a quantity of the lands themselves; so in some reversion, or remainder, expectant upon a lease, counties they are not much acquainted with ad- or estate, that yieldeth no rent Sometimes the measurement by acre ; and thereby, for the most land is given in mortgage only, with full inten. part, the writs of those shires and counties do tion to be redeemed within one year, six months, contain twice or thrice so many acres more than or a lesser time. Many assurances do also pass the land hath. In some places the lands do lie to godly and charitable uses alone; and it hapopen

in common fields, and be not so valuable as peneth not seldom, that, to avoid the yearly oath, if they were enclosed; and not only in one and for averment of the continuance of some estate the same shire, but also within the selfsame lord- for life, which is eigne, and not subject to forship, parish, or hamlet, lands have their divers leiture, for the alienation that cometh after it, the degrees of value, through the diversity of their party will offer to sue a pardon uncompelled befertility or barrenness: wherein how great odds fore the time; in all which some mitigation of the and variety there is, he shall soonest find, that uttermost value may well and worthily be offered, will examine it by his own skill in whatsoever the rather for that the statute, 1 E. III. place that he knoweth best.

c. 12, willeth, that in this service geneMoreover, some lands be more chargeable than rally a reasonable fine shall be taken. others are, respecting either the tenure, as knight's Lastly, error, misclaim, and forget- Error and misservice, and the tenure in chief, or in regard of fulness do now and then become suit- taking. defence against the sea and great rivers; as for ors for some remission of extreme rigour: for I their lying near to the borders of the realm, or have sundry times observed, that an assurance, because of great and continual purveyances that being passed through for a competent fine, hath are made upon them, or such like,

come back again by reason of some oversight, And in some counties, as, namely, westward, and the party hath voluntarily repassed it within their yearly rents, by which most commonly their a while after. Sometimes the attorney, or follower value to her majesty is accounted, are not to this of the cause, unskilfully thrusteth into the writ, day improved at all, the landlords making no less both the uttermost quantity, or more, of the land, gain by fines and incomes, than there is raised in and the full rent also that is given for it; or else other places by enhancement of rents.

setteth down an entierty, where but a moiety, a The manner and sorts of the convey- | third or fourth part only was to be passed; or

ance of the land itself is likewise va- causeth a bargain and sale to be enrolled, when riable, and therefore deserveth a diverse considera- nothing passed thereby, because a fine had transtion and value : for in a pardon one whole year's ferred the land before; or else enrolleth it within value, together with the mean rates thereof, is the six months; whereas, before the end of those due to be paid ; which ought therefore to be more months, the land was brought home to the first favourably assessed, than where but a third part owner, by repayment of the money for which it of one year's rent, as in a license or writ of entry, was engaged. In which and many other like or where only a tenth part, as in a writ of cove- cases, the client will rather choose to give a nant, is to be demanded,

moderate fine for the alienation so recharged, A license also and a pardon are to pass the than to undertake a costly plea in the Exchequer, charges of the great seal, to the which the bar- for reformation of that which was done amiss. gain and sale, the fine and recovery are not sub- I take it for a venial fault also to vouchsafe a ject. Sometimes, upon one only alienation and pardon, after the rate and proportion of a license, change, the purchaser is to pass both license, io him that without fraud or evil mind hath fine, and recovery, and is for this multiplicity of slipped a term or two months, by forgetting 10 payments more to be favoured, than he which purchase his license. bringeth but one single pay for all his assurance. Much more could I say concerning this unbla

Moreover, it is very often seen that the same mable inequality of fines and rates; but as I meant land suffereth sundry transmutations of owners only to give an essay thereof, so, not doubting but within one term, or other small compass of time; that this may stand, both for the satisfaction of by which return much profit cometh to her ma- such as be indifferent, and for the discharge of us jesty , though the party feel of some favour in that be put in trust with the service, wherein no

doubt a good discretion and dexterity ought to be Neither is it of small moment in this used, I resort to the place where I left, affirming

part, to behold to what end the convey that there is in this employment of ours great use ances of land be delivered ; seeing that some of good learning also, as well to distinguish the times it is only to establish the lands in the hands manifold sorts of tenures and estates; to make of the owner and his posterity, without any construction grants, conveyances, and wills. alienation and change of possession to be made: and to sound the validity of inquisitions, liveries, sotnetiines a fine is levied only to make good a licenses, and pardons ; as also to decipher the lease for years, or to pass an estate for life, upon manifold slights and subtleties that are daily

that doing.

The end of cou
Tegance

!

offered to defraud her majesty in this her most an- the shipwreck of conscience, and with the irrecocient and due prerogative, and finally to handle verable loss of their honesty and credit; and, many other matters, which this purpose will not therefore, since it appeareth which way each of permit me to recount at large.

these hath his reward, let us also examine that Lastly, here is need, as I said, of integrity increase of benefit and gain, which is brought to throughout the whole labour and practice, as with her majesty by the invention of this office. out the which both the former learning and discre- At the end of Hilary term, 1589, being the last tion are no better than armata nequitia, and no- open term of the lease of these profits granted to the thing else but detestable craft and double villainy. late Earl of Leicester, which also was to expire at

And now, as you have seen that these clerks the feast of the Annunciation of the blessed Virgin want not their full task of labour during the time Mary, 1590, then shortly to ensue; the officers above of the open term, so is there for them whereupon remembered thought it, for good causes, their du. to be occupied in the vacation also.

ties to exhibit to the said right honourable the For whereas alienations of lands, holden by the lord treasurer a special declaration of the yearly tenure of prerogative, be continually made, and profits of these finances, paid into the hanaper that by many and divers ways, whereof all are during every of the six years before the beginning not, at the first, to be found of record ; and yet for of the demise thereof made to that earl, conferred the most part do come to be recorded in the end : with the profits thereof that had been yearly taken the clerks of this office do, in the time of the vaca- during the last six years before the determination tion, repair to the rolls and records, as well of the of the lease. By which it plainly appeared, that Chancery and King's Bench, as of the Common in all those first six years, next before the demise, Pleas and Exchequer, whence they extract notes there had been raised only 12,798l. 158. 7d. ob.; not only of inquisitions, common recoveries, and and in these last six years of the demise the full indentures of bargains and sales, that cannot but sum of 32,1601. 4s. 10d. qu.; and so in all 19,362l. be of record, but also of such feoffments, ex- 2s. 2d. ob. qu. more in these last, than in those changes, gifts by will, and indentures of cove- former six years. But because it may be said, nants to raise uses of lands holden in chief, as are that all this increase redounded to the gain of the first made in the country without matter of record, fermor only, I must add, that during all the time and come at the length to be found by office or of the demise, he answered 300!. rent, of yearly inquisition, that is of record; all which are digest- increase, above all that profit of 2,1331. 28. 7d. qu., ed into apt books, and are then sent to the remem- which had been yearly and casually made in the brancer of the lord treasurer in the Exchequer, to sixteen years one with another next before: the the end that he may make and send out processes which, in the time of fourteen years, for so long upon them, as he doth upon the extracts of the these profits have been demised by three several final concords of such lands, which the clerk of leases, did bring 4,2001. to her majesty's coffers. the fines doth convey unto him.

I say yearly; which may seem strange, that a Thus it is plain, that this new order by many casual and thereby uncertain profit should yearly degrees excelleth the former usage; as also for the be all one; but indeed such was the wondrous present advancement of her majesty's commodity, handling thereof, that the profit was yearly neither and for the future profit which must ensue by such more nor less to her majesty, howsoever it might discovery of tenures as were concealed before, by casually be more or less to him that did receive awakening of such as had taken a long sleep, and it. For the writs of covenant answered year by by reviving a great many that were more than year 1,1521. 168. 8d., the licenses and pardons half dead.

9341. 3s. 11d. qu., and the mean rates 46l. 2s.; in The fees or allowances, that are termly given all 2,1331. 28. 1d., qu., without increase or dimito these deputies, receiver, and clerks, for recom- nution. pense of these their pains, I do purposely preter- Moreover, whereas her majesty did, after the mit; because they be not certain, but arbitrary, at death of the earl, buy of the countess, being his the good pleasure of those honourable persons that executrix, the remnant of the last term of three have the dispensation of the same: howbeit, hi- years in those profits, whereof there were only therto each deputy and the receiver hath received then six terms, that is, about one year and a half

, twenty pounds for his travel in each term, only to come, paying for it the sum of 3,000l. her the doctor hath not allowance of any sum in gross, majesty did clearly gain by that bargain the sum but is altogether paid in petty fees, by the party of 1,1731. 158. 8d. ob. above the said 3,0001

. above or suitor; and the clerks are partly rewarded by the rent of 3,6491. 136. 10d. ob. qu. proportionably that mean also, for their entries, discharges, and due for that time, and above all fees and other some other writings, besides that termly fee which reprises. Neither hath the benefit of this increase

to her majesty been contained within the bounds But if the deputies take one penny of this small office, but hath swelled over the

besides their known allowance, they banks thereof, and displayed itself apparently, as buy it at the dearest price that may be; I mean, well in the hanaper, by the fees of the great seal

.

they are allowed.

[ocr errors]

Note.

1

« PreviousContinue »