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Section 170 Tenure in Burgage, part 9 - Sir Edward Coke, Selected Writings of Sir Edward Coke, vol. II [1606]

Edition used:

The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003). Vol. 2.

Part of: Selected Writings of Sir Edward Coke, 3 vols.

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Section 170
Tenure in Burgage, part 9

| And note that no custome is to bee allowed, but such custome as hath bin used by title of prescription, that is to say, from time out of minde. But diversopinions have beene of time out of minde, &c. and of title of prescription, which is all one in the Law. For some have said, that time of minde should be said from time of limitation in a Writ of right, that is to say, from the time of King Richard the first after the Conquest, as is given by the Statute of Westminster the first, for that a Writ of right is the most highest Writ in his nature that may be. And by such a writ a man may recover his right of the possession of his Ancestors, of the most ancient time that any man may by any writ by the Law, &c. And in so much that it is given by the said Estatute, that in a writ of right none shall be heard to demand of the seisin of his Ancestors of longer time, than of the time of King Richard aforesaid, therefore that is proved, that continuance of possession, or other customes & usages used after the same time is the title of prescription, and this is certaine. And others have said, that well and truth it is, that seisin and continuance after the limitation, &c. is a title of prescription, as is aforesaid, and by the cause aforesaid. But they have said that there is also another title of prescription that was at the Common Law, before any estatute of limitation of writs, &c. And that it was where a custom or usage, or other thing hath beene used, for time whereof mind of man runneth not to the contrary. And they have said that this is proved by the pleading: where a man will plead a title of prescription of custome hee shall say that such custome hath been used from time whereof the memory of men runneth not to the contrary, that is as much to say, when such a matter is pleaded, that no man then alive hath heard any proofe of the contrary, nor hath no knowledge to the contrary, & insomuch that such title of prescription was at the common law, & not put out by an estatute, Ergo, it abideth as it was at the common law, & the rather, insomuch that the said limitation of a writ of right, is of so long time passed, Ideo quaere de hoc.1 And many other customes and usages have such ancient Boroughs.

“prescription,”

Prescription is a title taking his substance of use and time allowed by the Law; Prescriptio est titulus ex usu & tempore substantiam | capiens ab authoritate Legis.2 In the Common Law a prescription which is personall is for the most part applied to persons, being made in the name of a certaine person and of his Ancestors, or those whose estate he hath, or in bodies politique or corporate, & their Predecessors, for as a naturall body is said to have Ancestors, so a body politique or corporate is said to have Predecessors. And a custome which is locall is alleaged in no person, but laid within some Mannor or other place. As taking one example for many, J. S. seised of the mannor of D. in3 fee prescribeth thus: That J. S. his Ancestors, and all those whose estate he hath in the said Mannor, have time out of minde of man had and used to have Common of pasture, &c. in such a place, &c. being the land of some other, &c. as pertaining to the said Mannor. This properly we call a prescription. A custome is in this manner: A Coppyholder of the Mannor of D. doth plead, that within the same Mannor, there is and hath been such a custome time out of mind of man used, that all the Coppyholders of the said Mannor have had and used to have Common of pasture, &c. in such a wast of the Lord, parcell of the said Mannor, &c. where the person neither doth or canprescribe, but alleageth the custome within the Mannor. But both to customes and Prescriptions, these two things are incident inseparable, viz. Possession, or usage; and Time. Possession must have three qualities, it must be long, continuall, and peaceable, Longa, continua, & pacifica: For it is said,4Transferuntur dominia sine titulo & traditione, per usucaptionem s. per longam, continuam, & pacificam possessionem. Longa, i.e. per spatium temporis per legem definitum, of which hereafter shall bee spoken, Continua dico ita quod non sit legitime interrupta. | Pacificam dico, quia si contentiosa fuerit, idem erit quod prius, si contentio fuerit justa. Ut si verus Dominus statim cum intrusor vel disseisor ingressus fuerit seisinam, nitatur tales viribus repellere, & expellere, licet id quod inceperit perducere non possit ad effectum, dum tamen cum defecerit diligens sit ad impetrandum & prosequendum. Longus usus nec per vim, nec clam, nec precario, &c.5 ,6

If a man prescribeth to have a rent, and like-wise to take a Distresse for the same, it cannot be avoided by pleading, that the rent hath beene alwayes paid by cohersion, albeit it began by wrong.7

“a title of prescription.”

Seeing that prescription maketh a title, it is to be seene, first to what things a man may make a title by prescription without charter. And secondly, how it may be lost by interruption.

For the first, as to such franchises and Liberties as cannot bee seised or forfeited, before the cause of forfeiture appeare of Record,8 no man can make a title by prescription because that prescription being but an usage in pais, it cannot (*)9 extend to such things as cannot bee seised nor had without matter of Record: as to the goods and chattels of Traitors, Felons, Felons of themselves, Fugitives, of those that be put in exigent, Deodands, Conusance of Pleas, to make a Corporation, to have a Sanctuarie, to make a Coro-|-ner, &c. to make Conservators of the peace, &c.

(c)10 But to Treasure Trove, Waifes, Estraies, Wrecke of sea, to hold Pleas, Courts of Leets, Hundreds, &c. Infange thiefe, Outfange thiefe, to have a Parke, Warren, Royall fishes, as Whales, Sturgions, &c. Faires, Markets, Franke foldage, the keeping of a Goale, Toll, a Corporation by prescription, and the like, a man may make a Title by usage and prescription only without any matter of Record, (*)11 Vide Sect. 310. where a man shall make a Title to lands by prescription.

But is to be observed (f )12 that although a man cannot as is aforesaid prescribe in the said Franchise to have Bona & catalla proditorum, felonum, &c.13 yet may they and the like be had obliquely or by a meane by prescription; for a Countie Palatine may be claimed by prescription, and by reason thereof to have Bona & catalla proditorum, felonum, &c.

As to the second, by what meanes a Title by prescription or custome, may be lost by interruption;14 It is to be knowne that the title being once gained by prescription or custome, cannot be lost by interruption of the possession for 10. or 20. yeeres, but by interruption in the right, as if a man have had a Rent or Common by prescription, unity of possession of as high and perdurable estate is an interruption in the right.

In a Writ of Mesne the Plaintife made his title by prescription,15 that the Defendant and his Ancestors had acquited the Plaintife & his Ancestors, and the Terre tennant time out of minde, &c. the Defendant tooke issue, that the Defendant & his Ancestors had not acquited the Plaintife & his Ancestors & the Terre tenant, and the Jurie gave a speciall verdict, that the Grandfather of the Plaintife was enfeoffed by one Agnes and that Agnes and her Ancestors were acquited by the Ancestors of the Defendant time out of minde before that time, since which time no acquitall had been, and it was adjudged and affirmed in a Writ of error, that the Plaintife should recover his Acquitall, for that there was once a title by prescription vested, which cannot be taken away by a wrongfull Cesser to acquite of late time, and albeit the verdict had found against the letter of the issue, yet for that the substance of the issue was found, viz. a sufficient title by prescription, it was adjudged both by the Court of Common Pleas, and in the Writ of error by the Court of Kings Bench for the plaintife, which is worthy of observation. So a Modus decimandi16 was alleaged17 by prescription time out of minde for tithes of lambs, and thereupon issue joyned, and the Jurie found that before 20 yeeres then last past there was such a prescription, and that for these 20 yeeres, he had paid tithe lambe in Specie, and it was objected, first, That the issue was found against the Plaintife, for that the prescription was generall for all the time of prescription, and 20 yeeres faile thereof. 2. That the partie by payment of tithes in Specie had waived the prescription or custome. But it was adjudged for the Plaintife in the prohibition, for albeit the Modus decimandi had not beene paid by the space of 20 yeeres, yet the prescription being found, the substance of the issue is found for the Plaintife. And if a man hath a Common by prescription, and taketh a lease of the land for 20 yeeres, whereby the Common is suspended, after the yeeres ended, he may claime the Common generally by prescription, for that the suspension was but the possession, and not to the right, and the inheritance of the Common did alwayes remaine, and when a prescription or custome doth make a title of inheritance (as Littleton speaketh) the partie cannot alter or waive be the same in pais.

“time out of minde, &c. and of title of prescription, which is all one in the Law,”

So as the time prescribed or defined by Law is, time, whereof there is no memorie of man to the contrary. (c)18Omnis quaerela, &omnis actio injuriarum limitata intra certa tempora.19

“time of limitation.”

Limitation as it is taken in Law is a certaine time prescribed by Statute, within the which the Demandant in the action must prove himselfe or some of his Ancestors to be seised.

“in a Writ of right,”

In (f )20 ancient time the limitation in a Writ of Right was from the time of Henry the first whereof it was said, à tempore Regis Henrici senioris.21 After that by the Statute of (g)22 Merton the limitation was from the time of Henry the Second and by the Statute (h)23 of West. I. the limitation was from the time of Richard the First. And this is that limitation that Littleton here speaketh of, whereof in the Mirror in reprose of the Law it is thus said, (i)24Abusion est de counter cy longe temps dount nul ne poet testmoigner de vieu & de oyer que ne dure my generalment ouster 40. ans.25

| Time of limitation is twofold, First, in Writs, and that is by divers Acts of Parliament.26 Secondly, To make a title to any Inheritance, and that (as Littleton here saith) is by the Common Law.

Limitation of times in Writs are provided by the said Statute of Merton, and after by the said Statute of West. I. which Littleton here citeth, and which was in force when he wrote, but is since altered by a profitable and necessary Statute (k)27 made Anno 32. Hen. 8. and by that Act, the former limitation of time in a Writ of Right is changed and reduced to threescore yeeres next before the Teste of the Writ, and so of other actions, as by the statute at large appeareth. But it is to be observed that this Act of 32. Hen. 8. extendeth (l)28 not to a Formedon,29 in the Discender,30 nor tothe Services of Escuage, Homage, and Fealtie, for a man may live above the time limited by the Act: neither doth it extend to any other service, which by common possibility may not happen or become due within sixty yeeres; as to cover the hall of the Lord, or to attend on his Lord when he goeth to warre, or the like, nor where the seisin is not traversable or issuable, neither doth it extend to a Rent created by Deed,31 nor to a Rent reserved upon any particular estate, for (m)32 in the one case the Deed is the title, and in the other the reservation, nor to any writ of Right of advowson, Quare impedit,33 or Assise of Darreine presentment34 (for there was a Parson of one of my Churches that had been Incumbent there above fifty yeeres, and died but lately) or any Writ of Right of Ward, or ravishment of Ward, &c. but they are left as they were before the Statute of 32. Hen. 8.35 But hereof thus much for the better understanding of Littleton shall suffice.

“from the time of King Richard the first.”

36 And that was intended from the first day of his reigne, for (from the time) being indefinitely, doth include the whole time of his reigne, which is to be observed.

“a Writ of right,”

Breve de recto,37 As writ of Right, so called, for that the words in the Writ of Right are, Quod fine dilatione plenum rectum teneas.38

“title of prescription that was at the Common Law, . . . from time whereof the memory of men runneth not to the contrary.”39

Docere oportet longum tempus, & longum usum illum, viz. qui excedit memoriam hominum, tale enim tempus sufficit pro jure.40

“any proofe of the contrary,”

For if there bee any sufficient proofe of Record or writing to the contrarie, albeit it exceed the memorie, or proper knowledge of any man living, yet is it within the memorie of man: for memorie or knowledge is twofold First, By knowledge by proofe, as by Record or sufficient matter of writing.41 Secondly, by his owne proper knowledge. A Record or sufficient matter in writing are good memorialls, for Litera scripta manet.42 And therefore it is said, when we will by any record or writing commit the memory of any thing to Posterity, it is said tradere memoriae.43 And this is the reason that regularly a man cannot prescribe or alleage a Custome against a Statute, because that is matter of Record, and is the highest proofe and matter of Record in Law. But yet a man may prescribe against an Act of Parliament, when his Prescription or Custome in saved or preserved by another Act of Parliament.

There is also a diversity betweene an Act of Parliament in the negative and in the affirmative, for an affirmative Act doth not take away a custome as the Statutes of Wills of 32 and 34. Hen. 8. doe not take away a Custome to devise Lands, as it hath beene often adjudged. Moreover, there is a diversitre betweene Statutes that be in the negative, for if a Statute in the negative be declarative of the ancient Law, that is in affirmance of the Common Law, there as well as a man may prescribe or alleage a Custome against the Common Law, so a man may doe against such a Statute, for as our Author saith, Consuetudo, &c. privat communem legem.44 As the Statute of Magna Charta provideth,45 that no Leet shall be holden but twice in the yeere, yet a man may prescribe to hold it oftener, and at other times, for that the Statute (n)46 was but in affirmance of the Common Law.

So the Statute (o)47 of 34. Edw. 1. provideth that none shall cut downe any trees of his owne within a Forrest without the view of the Forrester: but inasmuch as this Act is in affirmance of the Common Law, a man may prescribe to cut downe woods within a Forrest without the view of the Forrester. And so was it adjudged in 16. Eliz. in the Exchequer by Sir Edward Sanders Chiefe Baron, and other the Barons of the Exchequer, as Sir John Popham Chiefe Justice of the Kings Bench reported to me.

In the Eire of the Forrest of Pickering before Willoughby, Hungerford and Hanbury, Justices Itinerants there, Anno 8. Edw. 3. I read (p)48 a claime made by Henry de Percy, Lord of the Manor of Semor within the said Forrest, the Forresters, Verderours, and Regarders found his claime to be true, viz. Quod praedictus Henricus de Percy, & omnes antecessores sui tenentes | maneriū praedictum à tempore quo non extat memoria & sine interruptione aliquali tenuerunt praedictū manerium cum pertinentiis extra regardum Forestae, & habuerunt Woodwardū portantem arcū & sagittas ad praesentandū praesentanda de venatione tantum, &c. & habuerunt in boscis suis de Semere forgeas, & mineras, & amputârunt, dederunt, & vendiderunt boscum suum infra manerium praedictum sine visu forestariorum pro voluntate sua, & fugarunt & ceperunt Vulpes, Lepores, Capriolos, &c. sicut idē Henricus Percy superius clamat.49 Which claime by prescription, and found as is aforesaid the Justices doubted onely of two points. The first forasmuch as the said Mannor was within the limits of the Forrest, it should not onely be Contra assisam Forestae,50 (o) for his Woodward to beare Bow and Arrowes, where by Law he ought to beare but an Hatchet and no Bow nor Arrowes within the Forrest, but also de facili cedere possit in destructionem ferarum, &c.51 and therefore doubted whether it might be claimed by prescription. Their second doubt was concerning fugationem, & captionem Capriolorum in boscis suis praedictis, eo quod est bestia venationis Forestae, & transgressores inde convicti finem facerent ut pro transgressione venationis,52 & for that difficultie the claime was adjourned into the Kings Bench. But of the other parts of the Prescription no doubt at all was made: and the like had beene allowed in the same Eire, as in the case of Thomas Lord Wake at Lydell, and of Gilbert of Acton, in the same Eire, Rot. 37. and of others.

“this is proved by the pleading.”

Note one of the best arguments or proofes in Law is drawne from the right entries or course of pleading, for the Law it selfe speaketh by good pleading, and therefore Littleton here saith, It is proved by the pleading, &c. as is pleading were ipsius legis viva vox.53

“insomuch that such title of prescription was at the common law, &c.”

Note all the prescriptions that were limited from a certaine time were by Act of Parliament, as from the time of Henry the First which was the first time of limitation set downe by any Act of Parliament, and so from the reigne of Richard the First &c. But this prescription of time out of memory of man was (as Littleton here saith) at the Common Law, and limited to no time. Also here is implyed a maxime of the Law, viz. That whatsoever was at the Common Law, and is not ousted or taken away by any Statute, remaineth still.

“common law.”

The Law of England in divided, as hath beene said before, into three parts, the Common Law, which is the most generall and ancient Law of the Realms; of part whereof Littleton wrote; 2. Statutes or Acts of Parliament; and 3. particular Customes (whereof Littleton also maketh some mention) I say particular, for if it be the generall Custome of the Realme, it is part of the Common Law.

The Common Law hath no controller in any part of it, but the high Court of Parliament, and if it be not abrogated or altered by Parliament, it remaines still, as Littleton here saith, The Common Law appeareth in the Statute of Magna Charta and other ancient Statutes (which for the most part are affirmations of the Common Law) in the originall writs, in judiciall Records, and in our bookes of termes and yeers. Acts of Parliament appeare in the Rols of Parliament, and for the most part are in print. Particular customes are to be proved.

[1. ][Ed.: Therefore query concerning this.]

[2. ][Ed.: Prescription is a title based on usage and time [for] taking something with authority of law.]

[3. ]12. Edw. 4. 1. 2. Mariae, Br. Preascr. 100. 6. Edw. 6. Dier 71. 14. Edw. 3 Bar. 277. 43. Edw. 3. 32. 7. Hen. 6. 26. 22. Hen. 6. 14 16. Edw. 2. tit. Presc. 53. 45. Ass. 8. 40. Ass. 27. 41. 21. Edw. 4. 53. 54.

[4. ]Bract. fo. 51. 52.

[5. ][Ed.: Ownership is transferred without title and delivery by usucaption, that is, by long, continuous and peaceful possession. Long, that is, for a period of time defined by law. I say ‘continuous’, [that is], provided it is not lawfully interrupted. I say ‘peaceful’, because if there is a dispute, the result will be as before, if the dispute is rightful: as where the true owner immediately after an intruder or disseisor has entered into seisin tries to repulse and expel them with force, even though he is unable to perfect what he has begun, provided that he is diligent in beginning and prosecuting the attempt. Long use neither by force, nor by stealth, nor by permission, etc.]

[6. ]Bract fol. 222. b.

[7. ]13. Edw. 4. 6.

[8. ]21. Hen. 6. Prescrip. 44. 21 Edw. 4. 6. 1. Hen. 23. 9. Hen. 7. 11. 20. 7. Hen. 6. 45. 6. Edw. 3. 32. 42. 45. Edw. 3. 2 2. Edw. 4. 26.

[9. ](*) Fleta lib. 1. cap. 25. Brit. fo. 6. & 15. 44. Ass. p. 8 49. Edw. 3. 3. Saunf. Pl. Cor. 21. 51. Lib. 5. co. 109. 110 Lib. 9. co. 29.

[10. ](c) 22. Edw. 3. Coron. 241. Hen. 7. 11. 20. 18. Hen. 6. prescrip. 45. 11. Hen. 4. 10. 21. Hen. 7. 33. 9. Edw. 4. 12. 39. 3. 35. 46. Edw. 3. 6. 11. Hen. 6. 25 F.N.B. 91. 1. Hen. 7. 24. Stanf. pl. Cor. 38 44. Edw. 3. 4 22. Edw. 4. 43. 14. 3. Edw. 3. Brook prescript. 57. 44. Ass. pl.

[11. ](*) 8. Hen. 6. 16.

[12. ](f) 12. Edw. 4. 16. 32. Hen. 6. 25 12. Eliz. Dier 288. 289

[13. ][Ed.: The goods and chattels of traitors, felons, etc.]

[14. ]11. Edw. 3. tit. issue 40.

[15. ]15. Edw. 3. tit. judgement 133. 14. Edw. 3. ibid. 155.

[16. ][Ed.: a modus (i.e. a customary or covenanted scheme) for tithing.]

[17. ]Mich. 43. & 44 Eliz. in a prohibition betweene Nowell pl. and Hicks Vicar of Edmunton defendant in the Kings bench.

[18. ](e) Bracton fo. 314

[19. ][Ed.: Every lawsuit and every action for wrongs is limited within certain periods.]

[20. ](f ) Regist. 158 Bracton fo. 373. 5. Ass. p. 2. 34. Hen. 6. 40

[21. ][Ed.: from the time of King Henry the elder.]

[22. ](g) Stat. de Mert. 20 Hen. 3. ca. 8

[23. ](h) West 1. an. 3. Edw. 1. c. 8 Vide W. 2. 13. Edw. 1. ca. 46

[24. ](i) Mirror ca. 5. sect 1.

[25. ][Ed.: It is an abuse to count of such a long time ago that no one may bear witness of sight and hearing, which generally does not last beyond forty years.]

[26. ]Glanvil li. 13. ca. 3. & 34. Mirror, ca. 5. Sect. 4. Fleta. 1. 2. c. 38. & li. 4. c. 5. Britton fol. 79. 82. Bracton lib. 2. fol. 52. & fol. 179. 253. 373.

[27. ](k) 32. Hen. 8. cap. 2. see the second part of the Institutes. Merton, c. 8.

[28. ](l) Mich. 10. & 11. Eliz. Dier 278. Fitzwilliams cafe.

[29. ][Ed.: Writ to recover entailed property.]

[30. ][Ed.: Writ used by the issue in tail to recover entailed property.]

[31. ]Lib 4. fol. 10. & 11. Bevils case.

[32. ](m) Lib 8 fo. 65. Sir Wil. Fosters case.

[33. ][Ed.: Writ to enforce a patrons right to fill a vacant benefice.]

[34. ][Ed.: Writ of assise that allows a person with right of advowdson to determine who had the right to fill a benefice and recover damages in another’s interference with this right.]

[35. ]1. Mar. Parliam. 2. cap. 5. Vide 17 Edw. 3. 11. Pl. Com 371.b.

[36. ]Vide 34. Hen. 6. 36.

[37. ][Ed.: A writ of right, or license for a person ejected out of an estate, to sue for the possession of it.]

[38. ][Ed.: That without delay you hold full right.]

[39. ]Bract. lib. 4. fol. 230. Fleta lib. 4. cap. 24.

[40. ][Ed.: It is necessary to explain long time, and this long usage, that is to say, something which exceeds memory of men, for such time suffices for law.]

[41. ]28. Ass. 25. 38. Ass. 18. 45. Edw. 3. 26. 5. Hen. 7. 10. 8. Hen. 7. 7. 11. Hen. 7. 21. Dier. 23. Eliz. 273.

[42. ][Ed.: Written words last.]

[43. ][Ed.: to hand on in memory.]

[44. ][Ed.: Custom, etc., supersedes the common law.]

[45. ]Magna Charta cap. 35.

[46. ](n) 6. Hen. 7. 2. 8. Hen. 4. 34. 12. Hen. 7. 18. 31. Hen. 6. leet. 11. 18. Hen. 6. 13.

[47. ](o) 34. Edw. 1. tit. forest. Rast. 1. Edw. 3. cap. 2.

[48. ](p) Itin. pickering ann. 8. Edw. 3. Rot. 38.

[49. ][Ed.: That is to say, that the aforesaid Henry de Percy, and all his ancestors as tenants of the aforesaid manor, from time out of mind and without interruption, have held the aforesaid manor with the appurtenances outside the regard of the forest, and have had a woodward bearing a bow and arrows to make presentment of what ought to be presented concerning hunting alone etc., and have had in their woods of Semer forges and mines, and have cut down, given and sold their wood within the aforesaid manor at their will, without the view of the foresters, and have chased and taken foxes, hares, rabbits, etc., as the same Henry has above claimed.]

[50. ][Ed.: Against the assize of the forest.]

[51. ][Ed.: he might easily go in destruction of the wild beasts, etc.]

[52. ][Ed.: chasing and taking of roes in their aforesaid woods, inasmuch as [a roe] is a beast of venison of the forest, and trespassers convicted thereof shall make fine as for a trespass to venison,]

[53. ][Ed.: the living voice of the law itself.]