the feoffee, for the feoffee was to hold of the feoffor by the fame fervices that the feoffor held over of his lord paramount: but fince this ftatute, if a tenant feised of land in fee infeoffeth a stranger, neither by the express refervation of the feoffor, nor by the implied refervation of the law, can there be a perfect tenure created at this day between the feoffor and the feoffee; for the feoffee fhall hold immediately of the lord paramount, not of the feoffor. And farther, as the king can do nothing which amounteth to the creation of a new cuftom; fo a common perfon can do nothing which amounteth to the creation of a new tenure. And therefore if there be lord and tenant by 10 s. rent, and the lord will confirm the eftate of a tenant Tenend. by a hawk, a pair of gilt fpurs, a rose, or fimilia, this is a void confirmation: otherwife had it been if the lord had confirmed the eftate of the tenant tenendum per 5 s. that had been a good confirmation, because it tendeth only to the abridgement of an old tenure, and not to the creation of a new. And as it is with a confirmation, so it is with a compofition. Upon the reason of this ground it is, that if the lord of a manor purchase foreign land, lying without the precincts and bounds of the manor, he cannot annex this unto the manor, though the tenants be willing to do their fervices; for this amounteth to the creation of a new tenure, which cannot be effected at this day. And therefore if a man having two manors, the lord would willingly have the tenants of both these manors to do their fuit and fervice to one court, this is but loft labour in the lord And to practise any fuch union; for notwithstanding this union they will be ftill two in nature, howfoever the lord covet to make them one in name; and the one manor hath no warrant to call the tenants to the other manor, but every act done in the one, to punish the offenders in the other, is traverfable. Yet if the tenants will voluntarily fubmit themselves to fuch an innovation, and the fame be continued without contradiction, time may make this union perfect, and of two diftinct manors in nature make one in name and use. fuch manors peradventure there are thus united by the consent of the tenants and continuance of time, but the lords power of itself is not fufficient to make any fuch union, caufâ quâ fuprà. But if one manor holdeth of another by way of efcheat, these two manors may be united together, *fortior enim eft difpofitio legis quam hominis. But in this, that I exclude common perfons from being able to create a tenure, I may feem to impugn many authorities which hold at this day that a tenure may be created by a common perfon. For to clear this colour of contradiction, know that tenures are twofold. First, imperfect: as where a man maketh a lease for years or for life, or a gift in tail; here is an imperfect tenure between the leffor and the leffee, the donor and the donee; and this imperfect tenure I confefs may be created by a common perfon at this day. Secondly, perfect, between very lord and very tenant in fee: and fuch a tenure a common perfon could never create fince the For a difpofition by law, is of more force, than by man. ftatute ftatute of Quia emptores terrarum. And confequently a common perfon cannot create a perfect manor fince, for without a perfect tenure a perfect manor cannot fubfift.. Thus much touching the definition of a manor; thus much, I fay, touching the two material caufes, together with the efficient cause. A word of another caufe of a manor, which appeareth not in the definition fo manifeftly as the other caufes do: this is a caufe which among the logicians is termed caufa fine qua non, and that is a court-baron; for indeed that is the chief prop and pillar of a manor, which no fooner faileth, but the manor falleth to the ground. If we labour to search out the antiquity of these court-barons, we shall find them as ancient as manors themselves, For when the ancient kings of this realm, who had all the lands of England in demefne, did confer great quantities of land upon fome great perfonages, with liberty to parcel the land out to other inferior tenants, referving fuch duties and fervices as they thought convenient, and to keep courts where they might redress misdemeanors within their precincts, punish offences committed by their tenants, and de cide and debate controverfies arifing within their jurifdiction; thefe courts were termed court-barons, because in ancient time fuch perfonages were called barons, and came to the parliament, and fat in the upper house: * Gloff. at end. Lamb. Apx. Tit. Thanus, p. 223. Gloff. at end Wilk. Leg. Angl. Sax. fame tit. p. 429. 2 vol. of Lord Bac. works, fol. edit. 1753. P. 50. Bac. El. of Law. p. 136. 8vo, edit. 1737. but when time had wrought such an alteration, that manors fell into the hands of mean men, and such as were far unworthy of fo high a calling; then it grew to a custom, that none but fuch as the king would fhould come to the parliament, fuch as the king for their extraordinary wifdom or quality thought good to call by writ, which writ ran, bac vice tantum. Yet though lords of manors loft their names of barons, and were deprived of that dignity which was inherent to their names, yet their courts retain ftill the name of court-barons, because they were originally erected for fuch perfonages as were barons: neither hath time been fo injurious as to eradicate the whole memory of their ancient dignity; in their name there is ftamps left of their nobility, for they are still intitled by the name of lords. Thefe courts differ from court-leets in divers refpects. 1. In this, that court-barons by the law may be kept once every three weeks, or (as fome think) as often as it fhall please the lord, though for the better ease both of lords and tenants they are kept but very seldom: Magna Char- but a court-leet by the statute of Magna Charta, c. 35. 31 ta is to be kept but twice every year; one E. 3. cap. 15. time within a month after Eafter, and an other time within a month after Michaelmas. 2. In this, that court-barons may be kept in any place within the manor, (contrary to the opinion of Brian;) but a court-leet by the ftatute of Magna Charta is to be kept in † in certo loco ac determinato within the precinct. 3. In this, that originally court-barons belonged In a certain and fixed place. *For this turn only. unto unto inferior lords of manors; but courtleets originally belonged unto the king. 4. In this, that court-barons are incident unto every manor, fo that every lord of a manor may keep a court baron; but few have leets: for inferior lords of manors cannot keep courtleets without fpecial prescription, or fome fpecial patent from the king. 5. In this, that in court-barons the fuitors are judges; but in court-leets the fteward is judge. 6. In this, that in court-barons the jury confifteth oftentimes of lefs than twelve, in court-leets never. The reason of that is, because none are impanelled upon the jury in court-barons but freeholders of the fame manor, but in court-leets ftrangers are oftentimes impanelled. 7. In this, that court-barons cannot subsist without two fuitors ad minimum; but court-leets can well fubfift without any fuitors. 8. In this, that court-barons enquire of no offences committed against the king; but court-leets enquire of all offences, under high treafon, committed against the crown and dignity of the king. In many other refpects they differ: As that a writ of error lieth upon a judgment given in a court-leet, but not in a court-baron. So in a court-leet a Capias lieth; but in a court-baron, instead of a Capias, is used an attachment by goods. So in a court-baron an action of debt lieth for the lord himself, because the fuitors are judges; but in a courtleer the lord cannot maintain any action for himself, because the steward is judge. But omitting these with many more, I come to the etymology of a manor. Some derive E 2 the |