began to sink escaped to land with life, then all those goods are said to be wrecked, and they belong to the crown if they be found; except the lord of the soil adjoining can entitle himself unto them by custom, or by the king's charter.

VII. Forfeitures.

By forfeitures, goods and chattels are thus gotten. If the owner be outlawed, if he be indicted of felony, or treason, or either confess it, or be found guilty of it, or refuse to be tried by peers or jury, or be attainted by judgment, or fly for felony, although he be not guilty or suffer the exigent to go forth against him, although he be not outlawed, or that he go over the seas without licence, all the goods he had at the judgment, he forfeiteth to the crown; except some lord by charter can claim them. For in those cases prescription will not serve, except it be so ancient, that it hath had allowance before the justices in eyre in their circuits, or in the king's bench in ancient time.

VIII. By executorship.

By executorship goods are thus gotten. When a man possessed of goods maketh his last will and testament in writing or by word, and maketh one or more executors thereof; these executors have, by the will and death of the parties, all the property of their goods, chattels, leases for years, wardships and extents, and all right concerning those things. Those executors may meddle with the goods, and dispose of them before they prove the will, but they cannot bring an action for any debt or duty before they have proved the will.

Executors may before probat dispose of the goods, but not bring an action for any debt.

What probat of the will is, and in what manner it is made.

The proving of the will is thus. They are to exhibit the will into the bishop's court, and there they are to bring the witnesses, and there they are to be sworn, and the bishop's officers are to keep the will original, and certify the copy thereof in parchment under the bishop's seal of office; which parchment so sealed, is called the will proved.

IX. By letters of administration.

By letters of administration property in goods is thus gotten. When a man possessed of goods dieth without any will, there such goods as the executors should have had, if he had made a will, were by ancient law to come to the bishop of the diocess, to dispose for the good of his soul that died, he first paying his funeral and debts, and giving Pii usus. the rest ad pios usus.

This is now altered by statute laws, so as the bishops are to grant letters of administration of the goods at this day to the wife if she requireth it, or children, or next of kin; if they refuse it, as often they do, because the debts are greater than the estate will bear, then some creditor or some other will take it as the bishop's officers shall think meet. It groweth often in question what bishop shall have the right of proving wills, and granting administration of goods. In which controversy the rule is intestate had thus, that if the party dead had at the

• Where the

bona notabilia

in diverse dio

cesses, then the archbishop of that province where he died the adminis

time of his death bona notabilia in diverse diocesses of some reasonable value, then the archbishop of the province where he died is to have the probat of his will, or to grant the administration of his goods, as the case falleth out otherwise the bishop of the diocess where he died is to do it.

If there be but one executor made, yet he may refuse the executorship, coming before the bishop, so that he hath not intermeddled with any of the goods before, or with receiving debts, or paying legacies.

is to commit

tration.

Executor may

refuse before

the bishop, if

he have not intermeddled

with the goods.

Executor ought to pay, 1. Judgments. 2. Stat. ReCogn. 3. Debts by bonds and

bills sealed. 4. Rent un

paid. 5. Serv6. Head workmen. 7. Shopcontracts by

ants' wages.

books and

words.

And if there be more executors than one, so many as list may refuse; and if any one take it upon him, the rest that did once refuse may, when they will, take it upon them; and no executor shall be farther charged with debts or legacies, than the value of the goods come to his hands; so that he foresee that he pay debts upon record, first debts to the king, then upon judgments, statutes, recognisances, then debts by bond and bill sealed, rent unpaid, servants' wages, payment to head workmen, and lastly, shop-books and contracts by word. For if an executor or administrator pay debts to others before debts to the king, or debts due by bond before those due by record, or debts by shop-books and contracts before those by bond, arrearages of rent, and servants' or workmen's wages, he shall pay the same over again to those others in the said degrees. But yet the law giveth them choice, that where divers have debts due in equal degree of record or speciality, he may pay which of them he will, before any suit brought against him; but if suit be brought he must first pay them that get judgment against him.

Debts due in equal degree of record, the executor may

pay which of please before

them he

suit commenced.

Any one executor may do as much as all together: but released and ing, he only shall be chargwise of admi

if a debt be

assets want

ed. Other

nistrators.

Any one executor may convey the goods, or release debts without his companion, and any one by himself may do as much as all together; but one man's releasing of debts or selling of goods, shall not charge the other to pay so much of the goods, if there be not enough to pay debts; but it shall charge the party himself that did so release or convey. But it is not so with administrators, for they have but one authority given them by the bishop over the goods, which authority being given to many is to be executed by all of them joined together. And if an executor die making an executor, the second executor is executor to the first testator.

But if an administrator die intestate, then his administrator shall not be executor or administrator to the first: but in that case the bishop, whom we call the ordinary, is to commit the administration of the first testator's goods to his wife or next of kin, as if he had died intestate; always provided, that

Executor dieth making his executor, the second

executor shall

be executor to

the first testawise, if the ad

tor. But other

ministrator die making his executor,

or if administration be committed of his goods.

:

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 The hanaper. chancery howbeit now of late years, all the sums which are due, either for any 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 alineation to be made of lands holden in chief, or for the pardon of any such alienation, 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 let to farm, upon derived out of assurance of three hundred pound of the hanaper. yearly standing profit, to be increased over and above that casual commodity, that was found to be answered in the hanaper for them, in the ten years, one with another, next before the making of the same lease.

This office is

The name of the office.

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 Trinity, 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 about which this farmer or his deputies are employed, is to 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 they be holden in chief, or to pass for common recovery, 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 Majesty'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.

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

The king's

could never

So that I am hereby enforced, for avoiding of confusion, to speak seve- tenant in chief rally, first of the fines for alienation of alien without lands held in chief, and then of the licence. fines upon the suing forth of writs original. That the king's tenant in chief could not in ancient time alien his tenancy without the king's licence, it appeareth by the statute, 1 E. III. cap. 12, where it is thus written: "Whereas divers do 1 E. 3. c. 12. complain, that the lands, holden of the king in chief, and aliened without licence, have been seized into the king's hands for such alienation, and holden as forfeit: the king shall not hold them as forfeit in such a case, but granteth 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. Assis. parl. 17 et 26, Ass. parl. 37, which also is repeated by Hankf. 14 H. 4, fol. 3. in which year Magna Charta was confirmed by him, the king's tenant in chief might as freely alien his lands without licence, 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, as from the beginning 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 be said " pro transgressione in hac parte facta:" but that you may also read amongst the records in the Tower, Fines 6 Hen. Reg. 3, Memb. 4, a precedent of a "capias in manum regis terras alienatas sine licentia 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

The fine for alienation is

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 antiquity 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. I. who may be therefore worthily called our English Solon or Lycurgus. Now therefore to proceed to the reason and equity of exacting these moderate. fines for such alienations, it standeth thus: when the king, whom our law understandeth to have been at the first both the snpreme 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 enclosed 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, why they were anciently seised 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. Fitzherbert in his Nat. Brev. fol. 147, that the justices 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 forfeiture of the whole lands for ever with the profits of one year, by the purchase of a pardon? Or otherwise, 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?

The antiquity and moderation of fines upon writs original.

Touching the king's fines accustomably paid for the purchasing of writs original, I find no certain beginning of them, and do therefore think that they also grew up with the chancery, which is the shop wherein 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 ordinary 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

fol. 38.

| means each man might boldly both crave and have law for the present, and find memorials also to maintain his right and recovery, 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 supportation of the king's expense, and the reward of the labour of them that were wholly employed for his profit. And therefore it was well said by Litt. 34. H. 6, Littleton, 34 H. VI. fol. 38, that the chancellor of England is not bound 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 H. III. Memb, 9, that Simon Hales and others gave unto him their king" unum palfredum pro summonendo Richardo filio et hærede Willielmi de Hanred, quod teneat finem factum coram justiciariis apud Northampton inter dictum Willielmum et patrem dicti Arnoldi de feodo in Barton." And besides that, in oblatis de Ann. 1, 2, et 7, regis Johannis, fines were diversely paid to the king, upon the purchase 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 hundred marks more a noble; and likewise upon every writ called a præcipe 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 noble, as it is set 20 Rich. II forth 20 Rich. II. abridged both by justice Fitzherbert, and justice Brooke; and may also appear in the old "Natura Brevium," and the Register, which have a proper writ of deceipt, formed upon the case, where a man did, in the name of another, purchase such a writ in the chancery without his knowledge and consent.

And herein the writ of right is excepted and passeth freely; not for fear of the words in Magna Charta, "Nulli vendemus justitiam vel rectum," as some do phantasy, 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 champion.

The like exemption hath the writ to inquire 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 two hundredth part of the thing that is demanded by the writ.

Right, or

some word of the like import, seems to be omitted here.

Neither has this office of ours originally to meddle with the fines of any other original writs, than of such only as whereupon a fine or concord may be had and levied; which is commonly the writ of covenant, and rarely any other. For we deal not with the fine of 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 statute 32 H. 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.

The second

All fines upon oath.

Before the institution of this ferm part of this and office, no writ of covenant for the treatise. levying any final concord, no writ of entry for the suffering of any common recovery 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 justice of assize, or master of the chancery, for the true 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 despatch of the subject, or for the uttermost advancement of the king's profit. But " quid verba audiam, cum facta videam ?" 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 attorneys, that followed their clients' 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 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 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 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 acquaintance with an oath, by little and little raseth 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 custom of the realm hath required at his hands. And the self-same thing is moreover, that I may shortly deliver it by the way, not only a singular comfort of the executioners 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 distributers of the same; and, as that most honourable lord and reverend sage counsellor, the late lord Burleigh, late lord treasurer, said to myself, to deal it out with wisdom and good dexterity towards all the sorts of writing. her loving subjects.

This passage ascertains the date of this