aried in unavut, therein first taken uner Jeicre some justices of assize, oath, by little and little raiseth 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, slicitor, 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 custom of the realm hath required at his hands. And the selfsame thing is, moreover, that I may shortly deliver it by the way, not only a singular comfort to the exe cutioners of this office, a pleasant seasoning of all the sour of their labour and pains, when they shall consider that they cannot be guilty of the doing of any oppression or wrong; but it is also a most necessary instruction and document for them, that even as her majesty hath made them dispensators of this her royal favour towards her people, so it behoveth them to show themselves peregrinatores, even and equal distributors of the same; and, as that most honourable lord and reverend sage counsellor, the late Lord Burleigh, The late lord treasurer, said to myself, to deal it out with wisdom and good dexterity towards all the sorts of her loving subjects. creased by this new device, I will reserve, as I have already plotted it, for the last part of this ar 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 sevemity of the law, that would not be satisfied without an ath; and, on the other side, the assurance of he truth to be had by so religious an affirmation as an ath is, he will easily believe that nothing could be added into that order, either for the ready despaten of the subject, or for the uttermost dvancement of the king's profit. But quid vera multum, cum ficta videam? Much peril to the sweater, and little good to our sovereign hath ensued therect. For, on the one side, the justices of assize were many times abused by their Siecks, that preferred the recognition of final concorus taken in their circuit; and the masters of the chancery were often overtaken by the fraud of solicitors and attorneys, that followed their cilents' causes here at Westminster; and, on the other side, light and lewd persons, 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; insomuch that it was usual for him that dwelt in Southwark, Shoreditch, or Tothill 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 was at all, or whence he came so young, that little could he tell what the matter meaned. And thus consuetudinem peccandi fecit multitudo peccantium. For the removing of which corruption, and of some others whereof I have long since particularly heard, it was thought good that the justice of assize should be entreated 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, undertake 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 advenwire 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 in The part of But now that it may yet more particularly appear what is the sum of this new building, and by what joints and sinews the same is raised and knit together, I must let you know, that besides the fermour's deputies, which, at this day, be three in number, and besides the doctor of whom I spake, there is also a receiver, who alone handleth the moneys, and three clerks, that be employed severally, as anon you shall perceive; and by these persons the whole proceeding in this charge is thus performed. Proceeding If the recognition or acknowledg ment of a final concord upon any writ of covenant finable, for so we call that which containeth lands above the yearly value of forty shillings, and all others we term unfinable, be taken by justice of assize, or by the chief justice of the Common Pleas, and the yearly value of those lands be also declared by affidavit inade before the same justice; then is the recognition and value, signed with the handwriting of that justice, carried by the cursitor in chancery for that shire where those lands do lie, and by him is a writ of covenant thereupon drawn and engrossed in parchment; which, having the same value endorsed on the backside thereof, is brought, together with the same paper that doth warrant It, into this office; and there first the doctor, conferring together the paper and the writ, endorseth his name upon that writ, close underneath the value thereof; then, forasmuch as the valuation thereof is already made, that writ is delivered to the receiver, who taketh the sum of money that is due, after the rate of that yearly value, and endorseth the payment thereof upon the same writ accordingly: this done, the same writ is brought to the second clerk, who entereth it into a several book, kept only for final writs of covenant, together with the yearly value, and the rate of the money paid, with the name of the party that made the affidavit, and the justice that took it: and at the foot of that writ maketh a secret mark of his said entry: lastly, that writ is delivered to the deputies, who seeing that all the premises be orderly performed, do also endorse their own names upon the same writ, for testimony of the money received. Thus passeth it from this office to the custos brevium, from him to the queen's silver, then to the chirographer to be engrossed, and so to be proclaimed in the court. But if no affidavit be already made touching the value, then is the writ of covenant brought first to the depubes, ready drawn and engrossed; and then is the value made either by composition had with them without any oath, or else by oath taken before the doctor; if by composition, then one of the deputies -tteth down the yearly value, so agreed upon, at the foot of the backside of the writ; which value the doctor causeth one of the clerks to write on the top of the backside of the writ, as the cursitor did in the former, and after that the doctor endorseth his own name underneath it, and so passeth it through the hands of the receiver, of the clerk that maketh the entry, and of the deputies, as the former writ did. But if the valuation be made by oath taken before the doctor, then causeth he the clerk to endorse that value accordingly, and then also subscribeth he his name as before; and so the writ taketh the same course through the office that the others had. made either before some such justice, or before the said doctor, that the lands, comprised in the writ, be not worth above forty shillings by the year, to be taken. And albeit now here can be no composition, since the queen is to have no fine at all for unfinable writs, yet doth the doctor endorse his name, and cause the youngest, or third clerk, both to make entry of the writ into a third book, purposely kept for those only writs, and also to endorse it thus, finis nullus. That done, it receiveth the names of the deputies, endorsed as before, and so passeth hence to the custos brevium as the rest. Upon every docket for license of alienation, or warrant for pardon of alienation, the party is likewise at liberty either to compound with the deputies, or to make affidavit touching the yearly value; which being known once and set down, the doctor subscribeth his name, the receiver taketh the money after the due rate and proportion; the second clerk entereth the docket or warrant into the book that is proper for them, and for the writs of entry, with a notice also, whether it passeth by oath or by composition; then do the deputies sign it with their hands, and so it is conveyed to the deputy of Mr. Bacon, clerk of the licenses, whose charge it is to procure the hand of the lord chancellor, and consequently the great seal for every such license or pardon. There yet remaineth untouched the order that is for the mean profits; for upon forfeiture which also there is an agreement made here when it is discovered that any alienation hath been made of lands holden in chief, without the queen's license; and albeit that in the other cases, one whole year's profit be commonly payable upon such a pardon, yet, where the alienation is made by devise in a last-will only, the third part of these profits is there demandable. by special provision thereof made in the statute of 34 H. VIII. c. 5, but yet every way the yearly profits of the lands so aliened without license, and lost even from the time of the writ of scire facias, or inquisition thereupon returned into the Exchequer, until the time that the party shall come hither to sue forth his charter of pardon for that offence. Proceeding of nean profits. 34 H. 8, c. 5. In which part the subject hath in time gained double ease of two weighty burdens, that in former ages did grievously press him; the one before the institution of this office, and the other sithence; for in ancient time, and of right, as it is adjudged 46 E. III. Fitzh. forfait 18, the mean profits were precisely answered after the rate and proportion per diem, even from the time of the alienation made. Again, whereas, before the receipt of them in this office, they were assessed by the affidavit from the time of the inquisition found, or scire facias returned, now not so much at any time as the one-half, and many times not the sixth part of them is exacted. Here, therefore above the rest, is great necessity to show favour eight or us before he Jess that runLienation made So when the present orant that his ther times, also, usef to have such a a of a special writ of earing a license, or parwen in truth the lands be of her majesty, or not a mean tenure in soccage, sce at the most. In which cs, the extremity should be taken, especially where the arty should be driven to his yake half a purchase, or more, and and living. cut the discovery of the tenure in ellowing of process for such e is also about the calling upon af accounts, and the bringing in of ase of their lands, therefore the first ek in this office, of whom I had y cause to speak, is chiefly and in a ddder wholly occupied and set on Now, if it do at any time hapd, as, notwithstanding the best eneavour, it may and doth happen, that ... howsoever colourably awarded, hath ae very mark whereat it was directed, but with upon some man who is not of right shed with the tenure in chief, that is obagainst; then is he, upon oath and other cace, to receive his discharge under the g the deputies, but with a quousque, and to iure domina. Usage and deceivable of awarding process cannot be avoided, www.y where a man, having in some one ace on lands holden in chief, and other lands so holden, alieneth the laws not holden: ww that it cannot appear by record nor aboose, without the express declaration and exccaces of the party himself, whether they 4 Polary for msp at the least, and sometimes twice so much, before the same lands that be holden, or others. ad, therefore, albeit the party grieved thereby may have some reason to complain of an untrue cage yet may he not well call it an unjust vexation; but ought rather to look upon that ease, wazca in this kind of proceeding he hath found, wacze, besides his labour, he is not to expend dove two-and-twenty shillings in the whole chage, in comparison of that toil, cost, and care, which he in the case was wont to sustain by the wast of certiorari in the Exchequer; wherein, besades all his labour, it did cost him fifty shillings The perso Moreover, some lands be more chargeable than others are, respecting either the tenure, as knight's service, and the tenure in chief, or in regard of defence against the sea and great rivers; as for their lying near to the borders of the realm, or because of great and continual purveyances that are made upon them, or such like. 1 E. 3., c. 12. 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 feiture, 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 generally a reasonable fine shall be taken. Lastly, error, misclaim, and forget- Error and misfulness do now and then become suit- taking. ors for some remission of extreme rigour: for I have sundry times observed, that an assurance, being passed through for a competent fine, hath come back again by reason of some oversight, and the party hath voluntarily repassed it within a while after. Sometimes the attorney, or follower of the cause, unskilfully thrusteth into the writ, both the uttermost quantity, or more, of the land, and the full rent also that is given for it; or else setteth down an entierty, where but a moiety, a third or fourth part only was to be passed; or causeth a bargain and sale to be enrolled, when nothing passed thereby, because a fine had transferred the land before; or else enrolleth it within the six months; whereas, before the end of those months, the land was brought home to the first owner, by repayment of the money for which it was engaged. In which and many other like cases, the client will rather choose to give a moderate fine for the alienation so recharged, than to undertake a costly plea in the Exchequer, for reformation of that which was done amiss. I take it for a venial fault also to vouchsafe a pardon, after the rate and proportion of a license, to him that without fraud or evil mind hath slipped a term or two months, by forgetting to purchase his license. And in some counties, as, namely, westward, their yearly rents, by which most commonly their value to her majesty is accounted, are not to this day improved at all, the landlords making no less gain by fines and incomes, than there is raised in other places by enhancement of rents. The manner of The manner and sorts of the conveyGrace ance of the land itself is likewise variable, and therefore deserveth a diverse consideration and value: for in a pardon one whole year's value, together with the mean rates thereof, is due to be paid; which ought therefore to be more favourably assessed, than where but a third part of one year's rent, as in a license or writ of entry, or where only a tenth part, as in a writ of covemant, is to be demanded. A license also and a pardon are to pass the charges of the great seal, to the which the bargain and sale, the fine and recovery are not subject. Sometimes, upon one only alienation and change, the purchaser is to pass both license, fine, and recovery, and is for this multiplicity of payments more to be favoured, than he which bringeth but one single pay for all his assurance. Moreover, it is very often seen that the same land suffereth sundry transmutations of owners within one term, or other small compass of time; by which return much profit cometh to her majesty, though the party feel of some favour in that doing. Much more could I say concerning this unbla mable inequality of fines and rates; but as I meant only to give an essay thereof, so, not doubting but that this may stand, both for the satisfaction of such as be indifferent, and for the discharge of us 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 Bryances 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 of grants, conveyances, and wills. alienation and change of possession to be made: and to sound the validity of inquisitions, liveries, sometimes 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 offered to defraud her majesty in this her most an- the shipwreck of conscience, and with the irreco cient and due prerogative, and finally to handle many other matters, which this purpose will not permit me to recount at large. Lastly, here is need, as I said, of integrity throughout the whole labour and practice, as without the which both the former learning and discretion are no better than armata nequitia, and nothing else but detestable craft and double villainy. And now, as you have seen that these clerks want not their full task of labour during the time of the open term, so is there for them whereupon to be occupied in the vacation also. For whereas alienations of lands, holden by the tenure of prerogative, be continually made, and that by many and divers ways, whereof all are not, at the first, to be found of record; and yet for the most part do come to be recorded in the end the clerks of this office do, in the time of the vacation, repair to the rolls and records, as well of the Chancery and King's Bench, as of the Common Pleas and Exchequer, whence they extract notes not only of inquisitions, common recoveries, and indentures of bargains and sales, that cannot but be of record, but also of such feoffments, exchanges, gifts by will, and indentures of covenants to raise uses of lands holden in chief, as are first made in the country without matter of record, and come at the length to be found by office or inquisition, that is of record; all which are digested into apt books, and are then sent to the remembrancer of the lord treasurer in the Exchequer, to the end that he may make and send out processes upon them, as he doth upon the extracts of the final concords of such lands, which the clerk of the fines doth convey unto him. Thus it is plain, that this new order by many degrees excelleth the former usage; as also for the present advancement of her majesty's commodity, and for the future profit which must ensue by such discovery of tenures as were concealed before, by awakening of such as had taken a long sleep, and by reviving a great many that were more than half dead. The fees or allowances, that are termly given to these deputies, receiver, and clerks, for recompense of these their pains, I do purposely pretermit; because they be not certain, but arbitrary, at the good pleasure of those honourable persons that have the dispensation of the same: howbeit, hitherto each deputy and the receiver hath received twenty pounds for his travel in each term, only the doctor hath not allowance of any sum in gross, but is altogether paid in petty fees, by the party or suitor; and the clerks are partly rewarded by that mean also, for their entries, discharges, and some other writings, besides that termly fee which they are allowed. verable loss of their honesty and credit; and, therefore, since it appeareth which way each of these hath his reward, let us also examine that increase of benefit and gain, which is brought to her majesty by the invention of this office. At the end of Hilary term, 1589, being the last open term of the lease of these profits granted to the late Earl of Leicester, which also was to expire at the feast of the Annunciation of the blessed Virgio Mary, 1590, then shortly to ensue; the officers above remembered thought it, for good causes, their du ties to exhibit to the said right honourable the lord treasurer a special declaration of the yearly profits of these finances, paid into the hanaper during every of the six years before the beginning of the demise thereof made to that earl, conferred with the profits thereof that had been yearly taken during the last six years before the determination of the lease. By which it plainly appeared, that in all those first six years, next before the demise, there had been raised only 12,798l. 15s. 7d. ob.; and in these last six years of the demise the full sum of 32,1607. 4s. 10d. qu.; and so in all 19,3621. 2s. 2d. ob. qu. more in these last, than in those former six years. But because it may be said, that all this increase redounded to the gain of the fermor only, I must add, that during all the time of the demise, he answered 3001. rent, of yearly increase, above all that profit of 2,1337. 28. Td qu«, which had been yearly and casually made in the sixteen years one with another next before: the which, in the time of fourteen years, for so long these profits have been demised by three several leases, did bring 4,2001. to her majesty's coffers. I say yearly; which may seem strange, that a casual and thereby uncertain profit should yearly be all one; but indeed such was the wondrous handling thereof, that the profit was yearly neither more nor less to her majesty, howsoever it might casually be more or less to him that did receive it. For the writs of covenant answered year by year 1,1527. 168. 8d., the licenses and pardons 9347. 3s. 11d. qu., and the mean rates 467. 2s.; in all 2,133l. 2s. 7d., qu., without increase or diminution. Moreover, whereas her majesty did, after the death of the earl, buy of the countess, being his executrix, the remnant of the last term of three years in those profits, whereof there were only then six terms, that is, about one year and a half, to come, paying for it the sum of 3,000%. her majesty did clearly gain by that bargain the sum of 1,173l. 15s. 8d. ob. above the said 3,000/, above the rent of 3,6491. 13s. 10d. ob. qu. proportionably due for that time, and above all fees and other reprises. Neither hath the benefit of this increase to her majesty been contained within the bounds of this small office, but hath swelled over the banks thereof, and displayed itself apparently, as well in the hanaper, by the fees of the great seal. |