filiam cujusdam viri Vlfi quem concupiverat maritali sibi foedere copulare Here it appeareth that the King's Licence or good will was sought but the reason appeareth not The good will of King Solomon was sought that Abishag might be given to Adoniah for his wife but not in respect of Tenure in either case It is an express law of King Canutus Ll. 72. ne nyde man naðer ƿif ne maeden c. That no man should constrain either woman or maid to marry otherwise than where they will nor shall take any mony for them unless by way of thankfulness some do give somewhat If these passages carry any shew of Wardship I must still let you know that Knights Fees were not at this time descendable unto Women by the Feudal law no nor long after when they were become hereditary in the masculine line Ne à Lancea ad fusum haereditas pertransiret as you may see by Cujacius in feud Lib. 1. Tit. 1. The first law that I meet with touching Feudal marriages is in Magna Charta Libertatum Hen. I. yet is there nothing spoken of marrying the heir male of the Kings Tenant within age And touching the female issue it is only provided that the King should be so far acquainted with their marriage as that he might be assur'd they should not marry with his enemies lest the feuds or feifs which were given for service against them should by this occasion be transferr'd to them Hear the words of the Charter Et si quis Baronum meorum vel aliorum hominum meorum siliam suam nuptui tradere voluerit sive sororem suam sive neptem sive cognatam mecum inde loquatur sed nec ego aliquid de suo pro hac licentia accipiam nec defendam ei quin eam det excepto si eam velit jungere meo inimico Et si mortuo Barone vel alio homine meo filia haeres remanserit sine liberis fuerit dotem suam maritationem habebit eam non dabo marito nisi secundum velle suum c. Ordaining that the Wife shall be Guardian of the Childrens lands or some near kinsman qui justus esse debet and that other Lords observe the like courses touching their Wards Thus among the Normans but I don't find in all the Feodal law of these times any thing sounding to this purpose nor any mention of Marriage or Wardship of the body or lands I take them therefore to have risen from the Normans a little before their coming into England but in a diverse manner according to the diversity of the places and the moderate or covetous disposition of the Lords For it seemeth that tho' the profits of the land belong'd wholly to the Lord and were therefore ordinarily so taken by him yet some of the Lords deducting only the charge of Education of the Ward and just allowances restor'd him his lands at full age with the surplusage upon accompt And the Grantee of a Wardship from the King was in Normandy tyed to do it as appeareth by the 215. Artic. of the reformed Customes for otherwise they were not Guardians properly and Tutores rei pupillaris but fructuarii rather and suum promoventes commodum See the Comment to that Article So in point of Feodal marriage it seemeth that the Charter of Henry I. was grounded upon the Norman Custom which tho it required the consent of the Lord in tendring of Marriage to Women for the reason aforesaid yet did it not permit either him or the kindred or friends whom they called the parents to make it venal or to take any thing for the same as you may see by divers passages there and by a case adjudged in the Comment to the 228. Article where the Tutor or Guardian and the Parents and Friends thus offending are all condemn'd to pay costs and damages And note that according to the Norman custom the consent of the Parents viz. the next kindred and friends was as requisite as the consent of the Lord or Tutor which as I conceive gave the occasion of the words Si parentes conquerantur in the Statute of Merton as in respect of the ancient right they had in consenting to the Marriage And insomuch as we don't find that the various usages touching Wardship and Marriage were compos'd into an uniform law till Magna Charta Henr. III. did determine it it may be conceiv'd to have been the reason that Rand. Higden before mention'd and our other Authors did ascribe this part of our Feodal Law to be introduced by Henry III. But it is manifest by Glanvil that it was in use in Henry II's time and by the Charter of Henry I. to have been so likewise under William Rufus yet is there nothing hitherto any way produc'd to bring it from the Saxons or to shew it to have been in use amongst them CHAP. XVI No Livery no Primer Seisin IF the King's Tenant in capite or by Knight-service dieth the King shall have his lands till the heir hath done homage which if he be of full age he may do presently but if he be under age the land must continue in the King's hands till his full age And when either the one or the other sueth to have it out of the King's hands his obtaining it is called Livery and the profits receiv'd in the mean time by the King are call'd his Primer Seisin But neither of these could be among the Saxons for that their hereditary lands were not Feodal but libera ab omni gravedine as before we have shew'd And their temporary lands could not be subject to it for that their Estate extended no farther then to a Franck Tenement And neither the one or the other was then tyed to do Homage as shall appear when we speak of Homage After the coming of the Normans they were presently afoot amongst us even in William Rufus's days but uncertain and irregular which was a certain note of their novelty and that Feuds hereditary were new begun The great Charter of Liberties granted by Henry I. implyeth as much where to moderate them the King saith thus Si quis Baronum meorum seu Comitum sive aliorum qui de me tenent mortuus fuerit haeres suus non redimet terram suam sicut faciebat tempore fratris mei sed legitima justa relevatione relevabit eam Similiter homines Baronum meorum justa legitima relevatione relevabunt terras suas de Dominis suis I take this redeeming of the land out of the King's hands to be a Composition for his Primer Seisin and for the Livery and Relief things uncertain at this time even in their Norman appellations and not likely therefore to be known unto the Saxons CHAP. XVII That Reliefs whereon the Report most relyeth were not in use among the Saxons nor like their Heriots OF all the Feodal profits alledged in the Report to be receiv'd
to the Grant whether it be a part of the Grant and the modus concessionis or whether it be a distinct thing and Aliud from the Grant For so the Printed Case represents their Opinion if the Reservation of the Tenure and the Grant of the Land be aliud aliud two distinct things in the consideration of the whole Grant made and the authority given by the said Commission for the making thereof then the Patent may be void as to the Tenure and yet good for the Grant of the Land But if the Reservation of the Tenure be incident unto the authority and included within it and the Reservation of the Tenure and the Grant of the Land make up but one entire Grant so that the one is a part of the other and the Reservation of the Tenure be Modus concessionis then the granting of the Land reserving a diverse or contrary Tenure to that which their nude authority did warrant them to reserve is a doing of Idem alio modo and so the whole Act is void They who pleaded for the validity of the Letters Patents as to the Lands and their being void only as to the Tenure urg'd among other arguments That Tenures in Capite were brought into England by the Conquest but Grants were by the Common-Law and therefore Grants being more ancient than Tenures the Tenure must of necessity be aliud from the thing granted And to prove that this Tenure came in with the Conqueror they cited Mr. Selden in his Spicileg ad Eadmerum p. 194. where he hath that out of Bracton de Acquir Rerum Dominio b. 2. Forinsecum servitium dicitur Regale servitium quia spectat ad Dominum Regem non ad alium secundum quod in Conquestu fuit adinventum But this Argument and the Authority were both over-ruld and it was affirm'd that Tenures were not brought into England by the Conqueror but were common among the Saxons Their Answer to Mr. Selden's Opinion with the Reasons upon which they grounded their position I will transcribe at large from the Printed Case the Book being very scarce and this the only Point wherein Sir Henry Spelman is concern'd It was answered that Mr. Selden in that place does barely recite the words of Bracton not delivering any Opinion of his own For in that Book cited pag. 170. and in his Titles of Honour the last Edition p. 612. We find that he was of another Opinion and that this Tenure was in use in England in the times of the Saxons What were those Thani Majores or Thani Regis among the Saxons but the Kings immediate Tenants of Lands which they held by personal service as of the Kings person by Grand Serjeanty or Knights-service in Capite The Land so held was in those times called Thain-land as Land holden in Socage was called Reveland so frequently in Dooms-day Haec terra fuit terra Regis Edwardi Thainland sed postea conversa est in Reveland Cokes Instit Sect. 117. After some years that followed the coming of the Normans the title of Thane grew out of use and that of Baron and Barony succeeded for Thane and Thain-land Whereby we may understand the true and original Reason of that which we have in the Lord Cromwels Case 2. Coke 81. That every Barony of ancient time was held by Grand Serjeanty by that Tenure were the Thain-lands held in the time of the Saxons and those Thain-lands were the same that were after called Baronies 'T is true the Possessions of Bishops and Abbots were first made subject to Knights-service in Capite by William the Conquerour in the fourth year of his Reign for their Lands were held in the times of the Saxons in pura perpetua Eleemosyna free ab omni servitio saeculari But he then turned their Possessions into Baronies and so made them Barons of the Kingdom by Tenure so that as to them this Tenure and Service may be said to be in Conquestu adinventum But the thain-Thain-lands were held by that Tenure before As the Kings Thane was a Tenant in Capite so the Thanus mediocris or middle Thane was only a Tenant by Knights-service that either held of a mean Lord and not immediately of the King or at the least of the King as of an Honour or Mannour and not in Capite What was that Trinoda Necessitas which so often occurs in the Grant of the Saxon Kings under this Form Exceptisistis tribus Expeditione Arcis pontis exstructione See it in a Charter of King Etbeldred in the Preface to Cokes 6. Report c. But that which was after expressed by Salvo forinseco Bracton lib. 2. cap. 26. 35. 12. Edw. 1. Gard 152. 26. Ass 66. Selden Analect Anglobrit 78. And therefore it was said that Sir Henry Spelman was mistaken who in his Glossary verbo feudum refers the original of Feuds in England to the Norman Conquest It is most manifest that Capite Tenures Tenures by Knights-service Tenures in Socage Frank-almoigne c. were frequent in the times of the Saxons And if we will believe what is cited out of an old French Customary in a MS. Treatise of the Antiquity of Tenures in England which is in many mens hands all those Tenures were in use long before the Saxons even in the times of the Britains there it is said The first British King divided Britain into four parts And gave one part to the Arch-Flamines to pray for him and his posterity A second part he gave to his Earls and Nobility to do him Knights-service A third he divided among Husbandmen to hold of him in Socage The fourth part he gave to Mechanical persons to hold in Burgage But that Testimony was wav'd there being little certainty or truth in the British Story before the times of Caesar Neither would they make use of that which we are taught by William Roville of Alenzon in his Preface to the Grand Customier of Normandy that all those Customs among which these Tenures are were first brought into Normandy out of England by Edward the Confessor Besides that which hath been said we find Feuds both the name and thing in the Laws of those times among the Laws of Edward the Confessor cap. 35. where it is thus provided Debent enim universi Liberi homines secundum feodum suum secundum tenementa sua Arma habere illa semper prompta conservare ad tuitionem Regni servitium dominorum suorum c. Lambard Archaionom 135. This Law was after confirmed by William the Conqueror vid. Cokes Instit Sect. 103. As these Tenures were common in those times so were all the fruits of them Homage Fealty Escuage Reliefs Wardships For Releifs we have full testimony in the Reliefs of their Earls and Thanes for which see the Laws of King Canutus cap. 66 69. The Laws of Edward the Confessor cap. de Heterochiis And what out of the Book of Dooms-day Coke hath in his Instit Sect.
Majesty would please to consider his Son Accordingly the King sent for Mr. Spelman and with many expressions of kindness immediately conferr'd on him the honour of Knighthood After the Civil Wars broke out his Majesty by a Letter under his own hand commanded him from his own house in Norfolk to give his attendance at Oxford where he was oftentimes call'd to Private Councel and employ'd to write several papers in Vindication of the Proceedings of the Court But while he was thus attending the affairs of the Publick and when these would give him leave his own Private Studies he fell sick and died the 25. of July 1643. His Funeral Sermon by his Majestie 's special order was Preached by Arch-bishop Usher an intimate Acquaintance both of the Father and Son In the Year 1640. he had publisht the Saxon Psalter from an ancient MS. of Sir Henry's which as he tells us in the Preface was a task enjoyn'd him by his Father He also wrote the Life of King Alfred in English which having layn several years in Manuscript was at last translated into Latin and publisht in 1678. with Mr. Walker's Commentary upon it Clement Spelman youngest Son to Sir Henry was a Councellor and made Puny Baron of the Exchequer upon the Restoration of King Charles II. He publisht some peices relating to the Government and a large Preface to his Father's Book De non temerandis Ecclesiis Dying in June 1679. he was buried in St. Dunstan's Church in Fleet-street To return to Sir Henry He dy'd in London at the house of Sir Ralph Whitfeild his Son-in-law being about 80. years of Age. His body by the favour of King Charles was appointed to be inter'd in Westminster-Abbey whither it was carried with great solemnity on the 24 th of October 1641. and buried at the foot of the Pillar over against Mr. Camden's Monument The Several DISCOURSES Contain'd in this Volume 1. THe Original Growth Propagation and Condition of Feuds and Tenures by Knight-service in England pag. 1. CHAP. I. The occasion of this Discourse and what a Feud is p. 1. CHAP. II. The Original Growth and Propagation of Feuds first in general then in England p. 2. CHAP. III. That none of our Feodal words nor words of Tenure are found in any Law or ancient Charter of the Saxons p. 7. CHAP. IV. Of Tenures in Capite more particularly p. 10. CHAP. V. What degrees and distinctions of Persons were among the Saxons and of what coudition their Lands were p. 11. CHAP. VI. Of Earls among our Saxons p. 13. CHAP. VII Of Ceorls and that they were ordinarily but as Tenants at will or having Lands held not by Knight-service p. 14. CHAP. VIII Of Thanes and their several kinds p. 16. CHAP. IX Charters of Thane-lands granted by Saxon Kings not only without mention of Tenure or Feodal-service but with all Immunity except Expedition c. p. 19. CHAP. X. Observations upon the precedent Charters shewing that the Thane-lands or Expedition were not Feodal or did lye in Tenure p. 21. CHAP. XI More touching the freedom of Thane-land out of Doomsday p. 23. CHAP. XII The fruits of Feodal Tenures and that they were not found among the Saxons or not after our manner p. 24. CHAP. XIII No profit of Land by Wardship in the Saxons time p. 25. CHAP. XIV No Wardship in England amongst the Saxons objections answer'd p. 25. CAAP. XV. No Marriage of Wards p. 29. CHAP. XVI No Livery no Primer-seisin p. 30. CHAP. XVII That Reliefs whereon the Report most relyeth were not in use among the Saxons nor like their Heriots p. 31. CHAP. XVIII Difference between Heriots and Reliefs p. 32. CHAP. XIX No Fines for Licence of Alienation p. 33. CHAP. XX. No Feodal Homage among the Saxons p. 34. CHAP. XXI What manner of Fealty among the Saxons p. 34. CHAP. XXII No Escuage among the Saxons what in the Empire p. 36. CHAP. XXIII No Feodal Escheate of hereditary Lands among the Saxons p. 37. CHAP. XXIV Thaneland and Reveland what no marks of Tenure but distinctions of Land-holders p. 38. CHAP. XXV How the Saxons held their Lands and what obliged them to so many kinds of Services p. 40. CHAP. XXVI The Charter whereby Oswald Bishop of Worcester disposed divers Lands of his Church after the Feodal manner of that time entituled Indiculum Libertatis de Oswalds-Laws-Hundred p. 41. CHAP. XXVII Inducements to the Conclusion p. 43. CHAP. XXVIII The Conclusion p. 46. II. Of the Ancient Government of England p. 49. III. Of Parliaments p. 57. IV. The Original of the four Terms of the Year p. 67. The Occasion of this Discourse p. 69. SECT I. Of the Terms in general p. 71. SECT II. Of the names of Terms ibid. SECT III. Of the Original of Terms or Law-days p. 73 SECT IV. Of the Times assigned to Law-matters call'd the Terms ibid. CHAP. I. Of Law-days among the Ancients p. 74. CHAP. II. Of Law-days amongst the Romans using choice days p. 75. CHAP. III. Of Law-days among the first Christians using all times alike p. 75. CHAP. IV. How Sunday came to be exempted p. 76. CHAP. V. How other Festival and Vacation-days were exempted ibid. CHAP. VI. That our Terms took their original from the Canon-law p. 77. CHAP. VII The Constitution of our Saxon Kings in this matter ibid. CHAP. VIII The Constitution of Canutus more particular p. 78. CHAP. IX The Constitution of Edw. the Confessor most material p. 79. CHAP. X. The Constitution of William the Conqueror p. 80. CHAP. XI What done by Will. Rufus Henry I. K. Stephen and Hen. II. p. 81. CHAP. XII The Terms laid out according to their ancient Laws p. 82. CHAP. XIII Easter-term p. 83. CHAP. XIV Trinity-term p. 84. CHAP. XV. Of Michaelmass-term according to the ancient Constitutions p. 85. CHAP. XVI The later Constitutions of the Terms p. 86. CHAP. XVII How Trinity term was alter'd and shortn'd p. 87. CHAP. XVIII How Michaelmass-term was abbreviated by Act of Parliament 16. Car. I. Cap. 6. p. 81. SECT V. Other considerations concerning Term-time ibid. CHAP. I. Why the High-Courts sit not in the afternoons p. 89. CHAP. II. Why they sit not at all some days p. 90. CHAP. III. Why some Law business may be done on days exempted p. 93. CHAP. IV. Why the end of Michaelmass-term is sometimes holden in Advent and of Hilary in Septuagesima c. p. 95. CHAP. V. Why Assizes be holden in Lent ibid. CHAP. VI. Of the Returns p. 96. CHAP. VII Of the Quarta dies post p. 97. CHAP. VIII Why there is so much Canon and Foreign Law us'd in this Discourse with an excursion into the original of our Laws p. 98. Appendix p. 104. V. An Apologie for Arch-bishop Abbot touching the death of Peter Hawkins the Keeper wounded in the Park at Bramsil July 24. 1621. p. 107. VI. An Answer to the said Apologie p. 111. VII Letters and Instruments relating to the killing of Hawkins by the A. B.
p. 121. VIII Of the Original of Testaments and Wills and of their Probate to whom it it anciently belong'd p. 127. IX Icenia sive Norfolciae Descriptio Topographica p. 133. X. Catalogus Comitum Marescallorum Angliae p. 165. XI Dissertatio de Milite p. 172. De aetate Militari p. 174. De evocatis ad Militiam suscipiendam p. 175. De modo â—reandi Militem honoratum primo de Cingulo militari p. 176. Qui olim fiebant Milites p. 179. Qui possint militem facere p. 180. Judices etiam sub appellatione Militum censeri scil Equ esse Palatinos p. 182. De loco tempore Creationis p. 183. De Censu militari p. 184. Modus Exauctorandi Militem quod Degradare nuncupatur XII Historia Familiae de Sharnburn p. 187. XIII Familiae Extraneorum sive Lestrange accurata descriptio p. 200. XIV A Dialogue concerning the Coin of the Kingdom particularly what great treasures were exhausted from England by the usurpt Supremacy of Rome p. 203. XV. A Catalogue of the Places or Dwellings of the Arch-bishops and Bishops of this Realm now or of former times in which their several Owners have Ordinary Jurisdiction as if parcel of their Diocess tho' they be situate within the precinct of another Bishop's Diocess p. 211. THE Original Growth Propagation and Condition OF FEUDS and TENURES BY KNIGHT-SERVICE In ENGLAND CHAP. I. The occasion of this Discourse and what a Feud is IN the great case of Tenures upon the Commission of Defective Titles argued by all the Judges of Ireland and published after their resolution by the commandment of the Lord Deputy this year 1639. it fell out upon the fourth point of the Case to be affirmed That Tenures had their original in England before the Norman Conquest And in pursuit of this Assertion it was concluded That Feuds were then and there in use In proof hereof divers Laws and Charters of the Saxon Kings and some other Authorities be there alledged which being conceived to have clear'd that point it thus followeth in the Report p. 35. And therefore it was said that Sir Henry Spelman was mistaken who in his Glossary verbo Feodum refers the original of Feuds in England to the Norman Conquest And for a Corollary p. 38. addeth these words Neither is the bare conjecture of Sir Henry Spelman sufficient to take away the force of these Laws Vide Spelman in Glossar verbo Feodum Being thus by way of voucher made a chief Antagonist to the Reverend opinion of these learned grave and honour'd Judges I humbly desire of them that writing what I did so long ago and in a transitory passage among a thousand other obscure words not thinking then to be provok'd to this account they will be pleas'd to pardon my mistakings where they fall and to hear without offence what motives led me to my conjectures which they speak of It is necessary therefore that first of all we make the question certain which in my understanding is not done in the Report For it is not declared whether there were divers kinds of Feuds or no nor what kind they were that were in use among the Saxons nor what kind those were that I conjectured to be brought in by the Norman Conqueror I will therefore follow the direction of the Orator and fix the question upon the definition A Feud is said to be Vsus fructâ—s quidam rei immobilis sub conditione fidei But this Definition is of too large extent for such kind of Feuds as our Question must consist upon for it includeth two members or species greatly differing one from the other the one Temporary and revocable as those at Will or for Years Liâ—e or Lives the other Hereditary and perpetual As for Temporary â—euâ—s which like wild fig-trees could yield none of the feodal fruits of Wardship Marriage Relief c. unto their Lords they belong nothing unto our argument nor shall I make other use in setting of them forth than to assure the Reader they are not those that our Laws take notice of To come therefore to our proper Scheme let us see what that Hereditary Feud is whereupon our Question must be fixed for none but this can bear the feodal fruits we speak of Wardship Marriage c. A Feud is a right which the Vassal hath in Land or some immoveable thing of his Lord's to use the same and take the profits thereof hereditarily rendring unto his Lord such feodal duties and services as belong to military tenure the meer propriety of the soil always remaining unto the Lord. I call it as the Feudists do Jus utendi praedio alieno a right to use another mans Land not a property in it for in true feodal speech the Tenant or Vassal hath nothing in the propriety of the soil it self but it remaineth intirely unto the Lord and is comprehended under the usual name which we now give it of the Seignory So that the Seignory and the Feud being joyned together seem to make that absolute and compleat estate of Inheritance which the Feudists in time of old called Allodium But this kind of Feud we speak of and no other is that only whereof our Law taketh notice though time hath somewhat varied it from the first institution by drawing the propriety of the soil from the Lord unto the Tenant And I both conceive and affirm under correction That this our kind of Feuds being perpetual and hereditary and subject to Wardship Marriage and Relief with other feodal services were not in use among our Saxons nor our Law of Tenures whereon they depend once known unto them As shall appear by that which hereafter followeth CHAP. II. The Original Growth and Propagation of Feuds first in general then in England BEfore I enter into the Question in hand it will be necessary for better understanding that which followeth to set forth the original growth propagation and condition of Feuds in general which I conceive to be thus There were no doubt from the beginning of Jus Gentium Lords and Servants and those servants of two sorts Some to attend and guard the person of their Lord upon all occasions in War and Peace Some to manure his Lands for the sustenance of him and his Family When private Families were drawn into a Kingdom the Kings themselves held this distribution Examples hereof are in all Nations King David well observ'd it in the Institution of the Kingdom of Israel where if such services have any shew of Feuds or Tenures we have a pattern for them all viz. For that of Francalmoine in the Levites for Knight-service Tenure in Capite and Grand Serjeanty in the Military men which serv'd the King personally by monthly courses for Socage in those whom David appointed to manure the Fields dress the Vineyards the Olive-trees the Mulberry-trees and that had the care of the Oyl of the Oxen of the Camels Asses Sheep c. For the
lands and portion of the Levites was given to do the service of the Tabernacle the lands of the other tribes to fight the battels of the Lord against his idolatrous enemies and to root them out Thus may fancy couple the remotest things To come lower down and nearer home Pausanias tell 's us that when Brennus who they say was a Britain invaded Greece with an army of Gauls every horseman of the better sort had two other horsemen to attend and second him as his Vassals and they three together were called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Trimarcesiam i. e. a society of three horsemen But Caesar saith that the nobler Gauls in his time had according to their abilities many horsemen attending them in war whom by a German word he calleth Ambactos which properly signifieth servants vassals workmen and labourers yet he by a fairer name expoundeth it there in Latin Clientes and in another place calleth them among the Germans Comites familiares as accounting them like Abraham's 318. Souldiers to be all their Lord's followers and of his family Tacitus likewise nameth them Comites as companions and followers quod bello sequi Dominum coguntur saith Cujacius But Tacitus further saith Gradus quinetiam ipse Comitatus habet judicio ejus quem sectantur that there were degrees in those companies as he whom they followed did appoint Like them perhaps in after-after-ages of Earls Barons Knights c. But how the Comites or Ambacti were maintained neither Caesar nor yet Tacitus have related As for such portions of land as we call Knights-Fees they could not then have any for Caesar speaking of the Germans saith and so it appears by Tacitus neque quisque agri modum certum aut fines proprios habet c. That no man hath any certain estate or peculiar bounds of lands but the Magistrate and Lords of the place assign from year to year to kindreds and such as live together what quantity of land and in what place they think good and the next year force them to remove The reason you may see in Caesar who also sheweth That they had no common Magistrate but the Lord of the Town or territorie set what laws he would among his followers or Ambactos These laws the Goths the Swedes the Danes and Saxons called Bilagines of By which in all these languages signifieth a town and lagh or laghen which signifieth laws as Gravius Suecus and our Saxon Authors testifie And tho' Jornandes a Spanish Goth writeth it after the Spanish corruption Bellagine◠yet we in England keep the very radix and word it self By-laws even unto this day tho' diverted somewhat from the sense that Caesar speaks of For we call them Town-laws or By-laws which the Townsmen make among themselves but Caesar sheweth that the Lords imposed them Herewith agreeth that of Tacitus or some other Ancient who speaking of the Germans saith Agricolis suis jus dicunt They give laws to them which dwell upon their lands For I take Agricolis here in the larger sense to extend to all that dwell upon the Lord's lands as well his military followers as his husbandmen in the same manner as solicolae containeth all that live upon the soil ruricolae all that live in the Country and coelicolae all that live in heaven These Lordships of Towns which Caesar speaketh of were after by the Normans called Maneria The Ambacti or Comites and these which he saith sectabantur Dominos suos were called Vassalli and sectatores manerii sive Curiae Domini Vassals and Suiters of Court The Bilagines or Town-laws were called Consuetudines and customs of the Mannor The jurisdiction which the Lord had over his followers and suiters was called the Court Baron and the portions of land c. assigned to his followers for their stipend or maintenance were at first called Munera after Beneficia and lastly Feuda or Tenant-lands which were of two sorts one for military men called Feudum militare and Feudum nobile tenure by Knights-service the other for husbandmen call'd therefore Feudum rusticum ignobile tenure in Socage or by the Plough Thus it appeareth that Feuds and Tenures and the Feudal law it self took their original from the Germans and Northern Nations In such condition therefore how obscure soever as Caesar and Tacitus left them to us Gerardus Niger the Consul of Milan who flourished about A. D. 1176. and first composed them into a book taketh them up as he there findeth them and speaking of the times of Caesar and Tacitus as having the forementioned passages under his eye saith Antiquissimo tempore sic erat in Dominorum potestate connexum ut quando vellent possent auferre rem in feudum à se datam And this agreeth with Caesar by whom it seemeth in the places before mentioned that the Ambacti or followers of the Germans had in those times either no land at all or no estate at all in their land or first but at the will of the Lord and then but for one single year Which Gerardus also confesseth to have been the condition of the eldest sort of feudataries for he saith presently after his former words Postea vero eo ventum est ut per annum tantum stabilitatem haberent res in feudum datae Thus for another while their Feudal Vassals whom here he calleth fideles and we now tenants by Knights-Service enjoyed their feuds no otherwise than from year to year at the pleasure of their Lords either by grant or sufferance till further grace confirmed them to them for divers years and at length for term of life which Gerardus also presently there declareth saying Deinde statutum est ut usque ad vitam fidelis producerentur feuda In this manner stood the principal feuds themselves even those of Earldoms and Dukedoms which they call feuda majora and feuda regalia in the latter time of the Saxons till the coming of the Conquerour But as touching the lesser feuds which we call Knights-Fees I find nothing in Abby-books otherwise than a numerous multitude of Leases and Grants made by Bishops and Abbats to their followers for term of life without mention of Tenure or Feudal service Yet I must confess that there is a notable precedent left us by Oswald Bishop of Worcester in the time of King Edgar who in granting out the lands of his Bishoprick unto his followers for life or three lives imposed upon them by a solemn Instrument ratified by the King himself a multitude of services and charges as well military as civil which after you shall here see and then consider how and whether they conduce to our Feuds or not If we understand them to be Feuds among the Saxons or of that nature then are we sure they were no more than for life and not inheritable nor stretching further without further grace obtained from the Lord.
Christian King caused his own Laws to be put in writing about the year 605. as other Western Nations in an age or two before had done and as Bede saith wrote them in the Saxon tongue The first Charter if I shall so call it or writing touching lands and privileges was as a MS. of Canterbury reporteth made by Withredus King of Kent in the year 694. and as that Charter it self witnesseth was appointed to be kept in the Church of our Saviour at Canterbury as a precedent for posterity to imitate and tho' it appeareth not there in what language it was written yet I presume it was in the same with their Law which was the Saxon tongue For there be two copies of it extant in Latin so differing the one from the other as thereby they both appear to be translations For proof thereof the one of them useth the words Charta and Chartula which Ingulfus affirmeth to be brought in hither by the Normans that is above three hundred years after the time of this Charter of Withred's The other Latin copy termeth it Scriptum not Chartam and the Saxons themselves used neither of those words but called such writings in Latin Chirographos not Chartas as Ingulfus there also testifieth So that it hereby appeareth that the Prototype or first pattern of Charters which the Saxons imitated was not in Latin but in Saxon. Secondly it is therefore to be presumed and very strongly that tho' this Charter of Beorredus remaineth to us by a Latin copy yet the original it self like a thousand others was in the Saxon tongue Nor could it in all probability be otherwise for at the very time when it was made viz. in anno 868. learning was so generally subverted throughout England by the barbarous Danes that King Alfred who began to reign within four years after the date thereof saith Paucissimi fuerunt cis Humbrum qui vel preces suas communes sermone Anglico intelligere potuerant vel scriptum aliquod è Latino transferre Tam sane pauci fuerunt ut ne unum quidem recordari possum ex australi parte Thamesis tum cum ego regnare occaeperam But as their original Charters were in the Saxon tongue so in the Leiger-books in which they are preserved to us they are often set down in the Saxon and then because the books themselves are in Latin they are there translated also into Latin and often times set down in the Latin only without the Saxon as in the book of Ramsey-Abby which having no Charters in it in the Saxon tongue the Author of it saith that himself had there translated them all into Latin after that that Abby in the days of King Stephen had recovered her liberty Yet I deny not that Latin Charters might be often used by their latter Clergy-men when learning which in Beorred's time was utterly subverted began at last to recover life again Thirdly I conceive that the word feudum or feodum was not in use in Beorredus's days viz. anno 868. For proof whereof we are to consider the infancy youth and full age of the Feodal Law for according to these several times the Feodal Lands had their several denominations First they were called Munera then Beneficia and lastly Feuda as is aforesaid Marculfus who collected the Formulas or Precedents as we call them of Charters and Instruments of the time he lived in which was under Clodovaeus II. King of France about the year 660. maketh mention in his first book of Munera and in his second of Beneficia but no where of Feuda and he who a hundred years or more after him collected the Formula's incerti Autoris speaketh divers times of Beneficium but never nameth Feudum for that this term came not into use till afterwards when these Beneficia began to be granted in perpetuity Beneficium Regis saith Bignonius postea Feudum dictum est And in another place he saith Beneficii nomine ea praedia dicta sunt quae Feuda posteritas dixit initio namque vita accipientis finiebantur As if he should say they were called Beneficia when they were granted only for life of the Grantee but were called Feuda when they began to be granted in perpetuity and not before Cujacius therefore speaking of Feudatarii which word came into use with Feudum for Relatives mutuo se ponunt auferunt saith that when Actores custodesque proediorum nostrorum temporarii perpetui esse caeperunt c. when those who had the use and ordering of our Lands for a certain time began to enjoy them in perpetuity and yet retained their Latin name of Homines our Men they grew then also to be called after new and forreign names Vassalli Leudes and Feudatarii by the Princes and great Noblemen who choosed rather to grant them lands in perpetuity in consideration that they should do them military service And he saith that these names were first brought into Italy by the German Princes Where and particularly in Milan as Merula reporteth the Feodal Laws and Customs have had their original and from thence been propagated throughout Europe By this it appeareth that the words Feudum and Feudatarii were not in use till that the word Munera was grown obsolete Nor afterward till Beneficia leaving to be temporary or but for life became to be perpetual possessions which as I have often said was not long before the Conquest So that the word Feudum could not be in use in Beorredus's time who lived two hundred years before Fourthly Tho' the word Feudum were in the original Charter of Beorredus yet doth it not prove that our Feuds were then in use For call them Beneficia or call them Feuda certain it is that neither the one nor the other were then hereditary or perpetual but either temporary or for life only which at length begat the difference between Feuda and Beneficia for Beneficia in a restrained sense began to signifie no more than an estate for life in which sense it resteth at this day in our Clergy-men's Livings called Benefices and the word Feuda grew to be understood only of such Beneficia or Benefices as were perpetual and hereditary To return from whence we digressed I suppose it now appeareth sufficiently how some Feodal words are crept into Charters and writings of Saxon date and I think I may conclude that the words before mentioned Tenura tenentes tenementa tenere or tenendum in a feodal sense or feodum it self were not in use among them Much less Tenure in Capite Tenure by Knight-service Tenure in Socage or Frank-Almoign tho' the like services were performed to the Saxon Lordships by their Thanes and Theodens their Socmen or Husbandmen and their Beads-men or Clergy-men by way of contract for the lands received from them as were after the Conquest to the Norman Lordships by way of Tenure for lands holden of them The Neapolitan and Sicilian Constitutions which
seqq a name not well agreeing with Feodal servitudes But it seemeth by divers Abby-books that some Estates for life which we call Frank tenements were also put in writing especially among the latter Saxons Yet were not these accounted bocland for they were laden commonly with many feodal and ministerial services whereas bocland as I said was free from all services not holden of any Lord the very same that Allodium descendable according to the common course of Nations and of Nature unto all the sons and therefore called Gavelkind not restrain'd to the eldest son as feodal lands were not at first but devisable also by will and thereupon called Terrae testamentales as the Thane that possessed them was said to be testamento dignus Folcland was terra vulgi the land of the vulgar people who had no estate therein but held the same under such rents and services as were accustomed or agreed of at the will only of their Lord the Thane and it was therefore not put in writing but accounted proedium rusticum ignobile But both the greater and the lesser Thanes which possessed Bocland or hereditary lands divided them according to the proportion of their estates into two sorts i. e. into Inland and Outland The Inland was that which lay next or most convenient for the Lord's Mansion-house as within the view thereof and therefore they kept that part in their own hands for supportation of their family and Hospitality The Normans afterwards called these lands terras dominicales the Demains or Lord's lands The Germans terras indominicatas lands in the Lord 's own use The Feudists terras curtiles or intra curtem lands appropriate to the Court or House of the Lord. Outland was that which lay beyond or out from among the Inlands or Demeans and was not granted out to any Tenant hereditarily but like our Copy-holds of ancient time having their original from thence meerly at the pleasure of the Lord. Cujacius speaking of this kind of land calleth it proprium feudum that is to say such land as was properly assigned for Feodal lands Proprium feudum est saith he extra curtem consistit in praediis As if he should say That land properly is a Feud or Feudal land which lyeth without the Demains of the Mannour and consisteth in land not in houses We now call this Outland the Tenants land or the Tenancy and so it is translated out of Biritrick's will in the Saxon tongue This Outland they subdivided into two parts whereof one part they disposed among such as attended on their persons either in war or peace called Theodens or lesser Thanes after the manner of Knights Fees but much differing from them of our time as by that which followeth shall appear The other part they allotted to their Husbandmen whom they termed Ceorls that is Carles or Churles And of them we shall speak farther by and by when we consider all the degrees aforesaid beginning with the Earl CHAP. VI. Of Earls among our Saxons AN Earl in the signification of Comes was not originally a degree of dignity as it is with us at this day but of Office and Judicature in some City or portion of the Country circumscribed anciently with the bounds of the Bishoprick of that Diocess for that the Bishop and the Earl then sat together in one Court and heard jointly the causes of Church and Common-wealth as they yet do in Parliament But in process of time the Earl grew to have the government commonly of the chief City and Castle of his Territory and withal a third part of the King's profits arising by the Courts of Justice Fines Forfeitures Escheats c. annexed to the office of his Earldom Yet all this not otherwise than at the pleasure of the King which commonly was upon good behaviour and but during life at most This is apparent by the severe injunction of King Alfred the Great labouring to plant literature and knowledge amongst the ignorant Earls and Sheriffs of his Kingdom imposed upon them That they should forthwith in all diligence apply themselves to the study of wisdom and knowledge or else forgoe their Office Herewith saith Asser Menevensis who lived at that time and was great with the King the Earls and Sheriffs were so affrighted that they rather choose insuetam disciplinam quam laboriose discere quam potestatum ministeria dimittere that is To go at last to the School of knowledge how painful soever rather than to lose their offices of Authority and degrees of Honour which Alfred there also declareth that they had not by Inheritance but by God's gift and his Dei saith he dono meo sapientium ministeria gradus usurpatis This is manifest by divers other authorities and examples in my Glossary in verbo Comes as the Reader if he please may there see Some conjecture that Deira and Bernicia in Northumberland and Mercia in the midst of England were Feudal and hereditary Earldoms in the Saxon times Those of Northumberland presently after their first arrival under Hengistus about the year 447. that of Mercia by the gift of Alfred the Great about the year 900. to Ethelredus a man of power in way of marriage with his daughter Ethelfleda but for ought I see it is neither proved by the succession of those Earldoms nor our Authors of Antiquity For my own part I think it not strange that there was not at the entry of the Saxons a Feudal and Hereditary Earldom in all Christendom As for this our Britain the misery of it then was such as it rather seemed an Anarchy and Chaos than in any form of Government Little better even in Alfred's days through the fury of the Danes tho' he at last subdued them for his time How soever three or four examples in five hundred years before the Conquest differing from the common use is no inference to overthrow it especially in times unsettled and tumultuous The noble Earldom of Arundel in our days of peace differeth in constitution from all the other Earldoms of England yet that impeacheth not their common manner of succession Loyseau and Pasquier learned Frenchmen speaking of the Dukes and Earls of France which England ordinarily followeth and sometimes too near the heels justifie at large what I have said shewing the Dukes and Earls in the Roman Empire from whose example others every where were derived were like the Proconsuls and Presidents of Provinces simple Officers who for their entertainment had nothing else but certain rights and customs raised from the people which we in England called Tertium denarium And that the Dukes and Earls of France were Officers in like manner but had the Seigneurie of their territory annexed to their Office so that they were Officers and Vassals both at once that is to say Officers by way of Judicature and Vassals whom we call Feodal tenants for their Seignories of Dukedoms and
Earldoms But say they tenue neant moiens en fief a vie c. holden notwithstanding as a fief for life not hereditary nor patrimonial in the beginning as afterward they were This change they assign to have been begun about the end of the first line of their Kings who being at that time weak and simple men the Dukes and Earls took opportunity to make their Estates hereditary But it continued not long for the first Kings of the second line reduced them presently to conformity Yet some there were in the remote Provinces that maintain'd themselves hereditary in despight of the Kings whereupon ensued many wars Thus far both these Authors do concur and then Loyseau addeth further That at the end of the second line Hugh Capet having made himself King of France permitted all to hold their Dukedoms Earldoms and Seigneuries hereditarily and taking homage of them as of hereditary Fiefs each party obliged themselves to support the other and their posterity in those dignities as hereditarily This happened in France a little before the Conquest of England and from this precedent of Hugh Capet's did our William the Conquerour make the Earldoms and Feuds in England first hereditary as we have already shewed in the second Chapter So that I conclude as I assumed in the beginning that the Saxon Earldoms were not hereditary nor otherwise Feodal if we shall so term them than for life whereon neither Wardship nor Marriage c. could depend Yet I confess that the Dukes and Earls of the Saxon times both had and might have great possessions in other lands as patrimonial and hereditary namely their Thaneland and in what condition they possessed them it shall appear anon when we come to speak more at large of Thanes and Thane-lands CHAP. VII Of Ceorls and that they were ordinarily but as Tenants at will or having lands held not by Knight-service THe division before mentioned which the Saxons made of their own degrees leadeth me in this next place tho' not orderly to speak of the Ceorle that is of the Carle or Churle and Husbandman The Ancients called him in Latin Villanus not as we ordinarily take it for a Bondman but for him that dwelling in a Village or Country Town lived by the Country course of Husbandry Mr. Lambard therefore to decline the misconceiving of the word Villanus doth render it in the Saxon laws by Paganus which signifieth the same that Villanus doth according to the French for a Villager but not according to our English for a Bondman Our Saxons otherwhile did term them like the Dutchmen Boors that is such as live by tilth or grasing and by works of husbandry Such were the Ceorls among the Saxons but of two sorts one that hired the Lord's Outland or Tenementary land called also the Folcland like our Farmers the other that tilled and manured his Inland or Demeans yielding operam not censum work and not rent and were thereupon called his Socmen or Ploughmen These no doubt were oftentimes his very Bondmen I therefore shall not meddle with them but will hold me to the first sort who having ordinarily no lands of their own lived upon the Outlands before mentioned of their Lord the Thane as custumary Tenants at his will after the usual manner of that time rendring unto him a certain portion of victuals and things necessary for Hospitality This rent or retribution they called Feorme but the word in the Saxon signifieth meat or victuals and tho' we have ever since Henry II's time chang'd this reservation of victuals into money yet in letting our lands we still retain the name of Fearms and Fearmers unto this day The quantity of the Fearme or rent for every plough-land seemeth in those times to have been certain in every Country according to the nature of the place King Ina in his laws did make it so through all the territory of the West-Saxons as you may see with much more touching this matter in my Glossary verbo Firma But insomuch as the chiefest part of the fruit and profits of the lands thus manured by the Ceorls or Husbandmen redounded to the benefit of their Lords and not of the Ceorls themselves the Romans counted them to be as bondmen and not freemen Caesar therefore speaking of them while they were yet in Germany saith Plebs pene servorum habebatur loco That their common people were in a manner bondmen And Tacitus to the same purpose Caeteris servis meaning these Ceorls or Husbandmen non in nostrum morem descriptis per familiam ministeriis utuntur suam quisque sedem suos penates regit Frumenti modum Dominus aut pecoris aut vestis ut colono injungit Et servus hactenus paret But this service was no bondage For the Ceorl or Husbandman might as well leave this land at his will as the Lord might put him from it at his will and therefore it was provided by the laws of Ina in what manner he should leave the land when he departed from it to another place And the Writ of Waste in Fitz-Herbert seemeth to shew that they might depart if they were not then well used It is apparent also that the Ceorl was of free condition for that his person was valued as a member of the Common-wealth in the laws of Aethelstan and his least valuation is there reckoned to be 200s. whereas the Bondman was not valued at all for that he was not as I said any part of the Common-wealth but of his Master's substance nor was he capable of any publick office But the Ceorl tho' he had no land might rise to be the leader of his Country-men and to use the armour of a Thane or Knight viz. an Helmet an Habergeon and a gilt Sword And if his wealth so increased as that he became owner of five hides of land the valuation of his person which they call'd his Were or Weregild was increased to two thousand thrimsas that is six thousand shillings and being then also adorned with other marks of dignity he was counted for a Thane as you shall see in the next Chapter But for all this a Ceorl or Husbandman tho' he were a Freeman was not by the Feodal law of that and later times capable of a Knights-fee or land holden by military service and therefore what land soever he purchased was to be intended land of no such tenure And it appeareth further by the laws of Aethelstan that the five hides of land before mentioned purchased by the Ceorl were descendable to his posterity which sheweth also that they were not feodal land for that feuds at that time were not here descendable as we have often declared So that I hope I may conclude that the Ceorls or Husbandmen among the Saxons held no land by our tenure of Knight-service CHAP. VIII Of Thanes and their several kinds SEeing then the weight of the question will rest wholly upon the
every eight hides or plough-land through the whole Kingdom shall find a man with a Crosset and Helmet to the Naval Expedition And every three hundred and ten plough-lands an ordinary ship For these purposes was the whole Land formerly divided either by Alfred the great or some other precedent King into 243600. hydes or plough-lands and according to this division were the military and other charges of the Kingdom impos'd and proportion'd without ever any mention of Tenures in â—â—â—ite or by Knight-service Hence it rose that the Saxon Kings in granting oâ— lands liberties and priviledges unto Ecclesiastical persons and others were usually so careful in reserving Expedition Burghbote and Brigbote as you may see in the Charters of King Withred Ina Aethelbald Aethelwulph Edgar c. in the Britain Councils as also in the Charters here following and in a multitude of others elsewhere besides Neither did this Military Expedition otherwise at that time bind the Saxons to a Tenure in capite or Knight-service then it doth us at this day in the Naval Expedition lately now reviv'd For better manifestation that Thanelands were subject to no feudal service consider I pray you the words of the Saxon passage before mention'd where it is said that a Thane must have three hydes at least of his agenes lande i. e. of his own land not terrae emphiteuticariae or precariae not usu-fructuariae or feodatariae but as a Latin copy hath it terrae suae propriae where the word propriae carrieth another sense than is ordinarily conceiv'd as to signifie in this place land wherein no other man hath any interest by feodal superiority or dominion but whereof himself hath meram proprietatem the sole and absolute propriety even the same Alodium that is spoken of in the Report and which no man hath or can have now at this day but the King's land holden of no man in the feodal sense for the phrase of tenure was not then in use amongst the Saxons nor ty'd any man to do any feodal service Another old Latin MS. therefore reciteth the same Saxon passage in these words Si villanus so they at that time call'd a Husbandman ita crevisset sua probitate quod pleniter haberet quinque hidas de suo proprio alodio c. dignus erat honore Liberalitatis quod Angli dicunt Ãanescipes surðe si autem liberalis homo 1. Ãegen Thanus ita profecisset ut Regi servisset vice sua equitaret in Missatico Regis hic talis si haberet alium Thanum sub se qui ad expeditionem Regis quinque hidas teneret in Aula Regis domino suo servisset c. Here I must say with Cujacius speaking of the Author of the second Book of Feuds Proprietatem alias vocat quod hic Alodium Noting thereby that Proprietaâ— and Alodium are synonima signifying land free from all feodal service and holden of no body Yet in that sense Alodium is here said to be Terra ad expeditionem Regis land oblig'd to the warfare of the King I must note also by the way that he that thus translated the Saxon passage by the words qui ad expeditionem Regis quinque hidas teneret follow'd the manner which before we spake of in rendring Saxon customs by Norman phrases The Reader perhaps will here understand teneret in the feodal sense for to hold of his Lord whereas in the Saxon book the words are no otherwise than gif he heâ—de i. e. if he had five hydes of land so that teneret here is no otherwise to be taken than for possideret To return to our purpose Thaneland might no doubt be tyed to do Military service or Knight-service and yet not holden in capite or by Knight-service for it is one thing to hold by Knight-service and another to be tyed to do it No man holdeth that hath not tenementum or tenementale quiddam But a man might be tyed to do this military expedition for his personal estate tho' he had no land or for his very person it self as appeareth by the laws of King Ina Cap. 52. where it is said gif se siðcundman c. If the Sithcundman having land forbeareth to go the Expedition he shall forfeit his land and 120s. and if he have no land yet he shall forfeit 60s. and an Husbandman who if he had land was but Tenant in Socage according to our Law 30s. It appeareth also by many Charters of the Saxon Kings that Thane lands were not feodal and that the military Expedition mde no Tenure by Knight-service Give me leave therefore to produce some of them that you may see thereby the use of those times and what the Kings themselves conceiv'd therein CHAP. IX Charters of Thane-lands granted by Saxon Kings not only without mention of Tenure or Feodal service but with all Immunity except Expedition c. EGO Eadwigh Monarchiam totius Britanniae Insulae cum superno juvamine obtinens cuidam meo fideli Ministro vocitato nomine Aelfwine duas mansas dimidiam tribuo perenniter illic ubi antiquorum hominum relatu nominatur at Schylfhinghatune habeat quam diu vivat post cui voluerit impertiat cum his rebus quae sibi rite pertinent tam in magnis quam in minimis Sit haec donatio immunis a servitute mundana excepto illo labore qui communis omni populo videtur esse not naming Expeditione c. but concluding Si quis augeat augeatur Si quis minuat careat praemio aeterno c. So that here he was freed a servitute mundana both great and small that was incident or inherent to the land by way of Tenure and yet he was chargeable to military Expedition and to the repairing of Bridges Castles Burroughs and Fortifications but that not otherwise than as all the land of the Kingdom was charg'd as before we have shew'd Regnante in perpetuum Domino nostro c. Ego Eadgarus Rex Anglorum caeterarumque gentium in circuitu persistentium gubernator rector cuidam fideli meo Ministro vocato nomine Alur modicam muniminis mei partem Terrae i. e. in Dorset tres perticas in illo loco ubi Anglica appellatione dicitur at Lonk ut habeat ac possideat quamdiu vivat post se unum haeredem quicunque sibi placuerit derelinquat Sit hoc praedictum rus liberum ab omni malorum obstaculo cum omnibus ad rus rite pertinentibus campis pascuis pratis sylvis Excepto communi labore Expeditione pontis arcis constructione Si quis vero hominum hanc meam Donationem cum stultitiae temeritate jactando infringere tentaverit sit ipse gravibus per colla depressis catenis inter flamivomes tetrorum doemonum catervas nisi prius ad satisfactionem emendare voluerit Istis terminis haec tellus ambita videtur Ãis is þe landgemark at Lonk c. Haec
under these names all the lands that belong'd thereunto And those that dwelt upon those mansas c. they called not tenentes holders as we do but manentes as persons abiding there All the foresaid words being of the middle-age-dialect not appropriated to the feodal language Fourthly In granting of feuds and feud lands the consideration is allways for matter de futuro as pro homagio servitio habendo But here in granting these Thane-lands the consideration is for service past or present signified by the quality of the Thane as fideli ministro meo or pro placabili obsequio not only without reservation of any future service but with express immunity from all services as to use the words of the Charters themselves 1. ut sint libera vel immunia à servitute mundana 2. Ab omni malorum obstaculo 3. Liberrima ab omni munduali obstaculo 4. Liberrimum ab omni munduali obstaculo in magnis modicis 5. Aeterna libertate jocundum 6. Liberum ab omni seculari gravedine Such was the freedom of these Thane-lands equal and no less than that of the lands given in Franck-Almoigne by King Edgar in the last cited Charter which are there said to be Omni terrenae servitutis jugo liberae imperpetuum Fifthly The Feodal lands might not be aliened without Licence But the Thane by the very words of his original Charter might grant them cuicunque voluerit Sixthly A Feodal tenant or tenant by Knights-service as we call him could not devise his land by Will before the statute of 32. Hen. VIII tho' it were with Licence of the Lord and of the King himself which law the Germans themselves do hold even unto this day And the Danes can yet devise no land by Will as I am informed but the Thane might devise his Thane-land to whom he would as appeareth bâ— the words of King Edward the Confessor in a Charter to Thola where he saith Possideat hanc meam regiam donaâ—â—onem quamdiu vivat post obitum suum cuicunque voluerit haeredi relinquat excluding hereby all title of Wardship and Feodal duties To the same effect are the rest of the Charters and therewith agreeth the priviledge of a Thane before mentioned Thani lex est ut sit dignus rectitudine testamenti sui As for that passage in the Will of Brictrick the Saxon where he seeketh his Lord s consent that his Will may stand I conceive it to be in respect of some â—oâ—â—land or custumary land which according to the use of that time he held at the will of his Lord and not in respect of any Thane-land For tho' this Brictrick were a man of great possessions yet was he none of the chiefest sort of Thanâ—s called the King's Thanes but as appeareth by his Will an under-Thane belonging to Aelfric who was Earl of Mercia And how far the priviledge of these under or lesser-Thanes extended I cannot yet determine Seventhly If Thane-land were of the nature of lands holden by Knight-service then by the Feodal law of that time it could not transire a lancea ad fusum that is it might not be granted to Women for Women were not then nor long after capable of Feodal land But the land here granted to Thola was Thane-land as appeareth by the very words of her Charter for that it is granted in aeternam haereditatem perpetualiter possidendam which words making an estate of inheritance were only proper to Thane-land otherwise called Bocland not to Folcland or Popular land which was but at Will of the Lord for years or for life Eighthly There could no tenure nor service lye upon the Thane-lands other than what was expressed in the Charters For in the end of every of them there was an horrible curse which in those days was fearfully respected laid by the King himself upon all those that should violate the Charter either by adding other incumbrances or by diminishing the granted immunities So that it is not to be supposed that there was any lurking Tenure or matter of plus ultra to impeach them The curse beginneth in every of the Charters with these words Si quis autem c. Ninthly and lastly Touching Expedition and repairing of Castles and Bridges which the Saxons called Burghbote and Brugbote tho' the two first of them be wholly military and the last serving as well for the passage of the King's Army as for the trade and commerce of his people yet were none of them either marks of Tenure or of Feodal service as appeareth by that we have formerly shew'd and by the testimony of these Charters where to use the words of Edw the Confessor in that to Thola it is said that they are Omnibus hominibus communia a common burthen to all men as belonging to the safety and sacred anchor both of the Kingdom and Common-wealth The Saxons therefore did not call them services or Feodal duties as things that lay upon the person of the owner but landirecta rights that charg'd the very land whosoever did possess it Church or Lay man And these duties were ordinarily excepted in every Charter not for that they should otherwise be extinguished but per superabundantem cautelam lest the general words precedent should be mistaken to involve them and to release that which the King could not release For tho' Ethelbald by his Charter to the Monks of Croyland did give the site of that Monastery with the appendancies c. libera soluta ab omni onere seculari in perpetuam elâ—emosynam yet in his Charter of priviledges granted to all Churches and Monasteries of his Kingdom speaking of the repairing of Castles and Bridges he confesseth and saith that Nulli unquam relaxari possunt And I suppose that the word Expedition was here omitted by the negligence of the Scribe for I never find it severed from repairing of Castles and Bridges in any other Charter And also tho' King Ethelwulf by his memorable Charter of priviledges ratified by the great Council of Winchester in the year 855. did by express words free Sanctam Ecclesiam that is all the Churches and Monasteries of his Kingdom ab Expeditione pontis extructione arcis munitione yet the whole Clergy about the year 868. did notwithstanding voluntarily assist his son Beorredus against the Danes with all the power they could as appeareth by the Charter of the same Beorredus CHAP. XI More touching the freedom of Thane-land out of Doomsday THo' that which is delivered in these Charters be authentical and need no farther proof yet to convince broad spreading errors the more manifestly it will not be unnecessary to shew what Doomsday it self relateth to confirm it For whereas lands holden in Capite and by Knights-service could not otherwise be disposed than by licence of the King or Superior Lord Doomsday sheweth that the Thane-lands might be used and disposed at the pleasure of the owner without impeachment
of any other For at Ebsa in Suthry under the title of Ric. fil Comitis Gisleberti it saith Hanc terram tenuerunt novem Teigni cum ea poterant utere quo volebant Plain Latin but the sense is That nine Thanes held this land of Ebsam in the time of Edward the Confessor and might do with it what they would So at Est-Burnham in Buckinghamshire under the title of Milo Crispin Duo Teigni homines Brictrici hanc terram tenuerunt vendere potuere and here it seemeth that these Thanes were not the Kings Thanes but of the lesser sort for that he calleth them homines Brictrici So in the same Shire under the title of S. Petr. Westmon it is said of the same Town of Est-Burnham Hoc manerium tres Treigni Tempore Regis Edwardi tenuerunt vendere potuerunt It there also appeareth that the Thane-land might be charg'd with a rent issuing out of it for it immediately followeth tamen ipsi tres reddiderunt quinque oras de consuetudine And it might be restrain'd from alienation as where it is said in Doomsday De ea viz. Lega Pelton sunt in dominio duae hidae una ex hiis fuit Tainland non tamen poterat ab Ecclesia separari Where the word tamen implyeth that altho' Thane-lands might otherwise be alienated yet this particularly could not So likewise might it be entailed upon a Family as appeareth in the laws of Alured Cap. 37. But thus Doomsday after the Conquest affirmeth the same that the Charters did before the Conquest And the words both in the one and the other which shew that the Thane might sell or use this land as he would do imply an estate of inheritance independant of any Lord either feodal or superior and was as even the Alodium mentioned in the Chapter of Thanes but whether it were descendable only upon the eldest son or dividable between all the sons as in Gavelkind I cannot say but the formula of Alodium join'd with Marculfus doth divide it between them all CHAP. XII The fruits of Feodal Tenures and that they were not sound among the Saxons or not after our manner HItherto we have sought our Tenures among the Saxons and have not found them tho' the Report telleth us It is most manifest that they were frequent and common in the times of the Saxons We will now follow the direction of our Saviour and see if by the fruit we can find the tree The Report saith by question and answer The fruits of the Tenure viz. in Capite and Knights-service what are they but the 1 Profits of the lands 2 Wardship 3 Livery 4 Primier seisin 5 Relief mistaken to be an Heriot 6 Fine for alienation and the rest Which rest it supplyeth shortly after to be 7 Homage 8 Fealty 9 Escuage Adding again Relief and Wardship instead whereof I out of a third passage do place 10 Escheats And it concludeth that As all these tenures were common in those times so were all the fruits of them c. Which if it be true the question is determined nay I yield it if any one of them agreeing directly with our Tenures be found amongst them some shew of Fealty and Licence to alien lands granted for a certain time only excepted for avoiding captious disputation Their very names pretend no Saxon antiquity but as the Ephramites bewrayed their Tribe by their Language so by their names these fruits discover themselves to be of Norman progeny And the Report doth not give us one instance or example of any of them in all the Saxon times If it did the words before mention'd in the Charters to the Thanes declaring that their land must be libera ab omni seculari gravedine c. sweep all away at once as the West-wind did the Grashoppers in Egypt and do make the Thane-lands to have the priviledge of Alodium here before mention'd to belong unto them that is to be free from all tenure and service It is true notwithstanding that both the greater and lesser-Thanes might have and had other lands besides these that were hereditary of feudal nature and holden by military service as in the Charter of Oswald the Bishop shall after appear but they holding them like Folcland only at the will of the Lord whether King or other or for certain years or at most for life or lives their Tenure and Feuds determin'd with the will of the Lord the term of years or estate for life And then could not any of the fruits before spoken of accrue unto the Lord that granted the land for that it forthwith reverted intirely into his own hands and was to be kept and dispos'd a-new as pleas'd him It is apparent therefore by this general demonstration that the fruits we speak of could not arise out of either of the Thane-lands were they temporary or hereditary if not haply fealty or some gratuity to the Lord for licence that the temporary Tenant might assign his interest or have it enlarg'd things proper as well to Socage and Folcland as to Feudal But let us examine all these fruits particularly and see whether and how we find any of them among the Saxons and give me leave herein to produce them in such order tho' not logical as the Report presenteth them to the Reader in their several places CHAP. XIII No profit of Land by Wardship in the Saxons time AS for the profits of the land which the King hath now during the minority of a Ward it is manifest that the Kings then had no such of the Thane-lands for that the Thane had this particular priviledge that when he dy'd he might make his Will of his own lands as it formerly appeareth and give them unto whom he would which was never lawful after the coming of the Normans for any Baron or Tenant by Knight-service to do till the statute 32. Hen. VIII Cap. 1. gave free liberty to all men to devise all Socage-land by their last Will in writing and no more than two parts only of land holden in Capite or by Knight-service least it should hinder the Lords too much of their Feodal profits And Socage-lands were therefore long before devisable in many Burroughs for that thereby the Lord sustain'd no such prejudice But to conclude this point in one word it shall I hope be made manifest in the next Chapter that there were no Wardships amongst the Saxons and thereupon it will follow invincibly there could be then no profits of lands arising to the King or Lords by title of Wardship CHAP. XIV No Wardship in England amongst the Saxons Objections answered IN following the Report I must now speak de causa post causatum of Wardship after the Profits of land growing by it This being the chiefest fruit of all feodal servitudes and the root from whence many branches of like grievances take their original the Report laboureth more to prove it to
that succeeded and out of his purse The Heriot whether the son or heir enjoy'd the land or not the Relief by none but him only that obtain'd the land in succession The Heriot whether the land were fallen into the Lord's hands or not the Relief in old time not unless it were fallen and lay destitute of a Tenant whose taking of it up out of the Lord's hands was in that sense called Relevium or Relevatio a taking up of that was fallen according to the French word Reliefe Bracton well observ'd the difference saying Fit quaedam praestatio quae non dicitur Relevium sed quasi sicut Heriotum quasi loco Relevii quod dari debet aliquando ante sacramentum fidelitatis aliquando post Hotoman saith Relevium dicitur honorarium munus quod novus Vassallus Patrono introitus causa largitur quasi morte alterius Vassalli vel alio quo casu feudum ceciderit quod jam à novo sublevetur Nov. Leo. 13. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 nominat I stand the longer herein for that not only the Report but even Doomsday it self and generally all the ancient Monkish writers have confounded Heriots and Releifs Yet might I have saved all this labour for nothing can make the difference more manifest than that we often see both of them are together issuing out of the same land But when all is done neither is Heriot nor Releif any badge of land holden by Knight's-service or in Capite for both of them are found in lands of ordinary Socage Yet I confess that Bracton saith de soccagio non datur Relevium and a little before de soccagio non competit domino Capitali Custodia nec homagium ubi nulla Custodia nullum Relevium sed è contra But this serveth my turn very well for that they in the Report having fail'd to prove that Releifs were in use in the Saxons time whereof they affirm'd they had full testimony it now inferreth on my behalf that if Releifs and Wardships were not in use among the Saxons that then also Tenure by Knight-service was not with them Besides all this the Heriot was a certain duty and settled by Law the Relief so various and uncertain as the Lords exacted what they listed for it when it fell into their hands constraining the heir of the Tenant as it were to make a new purchase of their Feud whereupon the Feudists called this Releif not only Renovatio and Restauratio feudi in Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 turning or bringing back of the Feud to the former condition or proper nature of it but also Redemptio a ransoming of it out of the Lord's hands That it thus stood with us in England by and by after the Conquest appears by that we have shewed before out of the Magna Charta of Henry I. CHAP. XIX No Fines for Licence of Alienation TOuching Fines for Licence of Alienation it is not said what kind of Tenants among the Saxons did pay them nor for what kind of land they were paid The Thane-land hereditary is apparently discharg'd thereof by the ordinary words of their Charters before mention'd where 't is said that the owners of lands may give and bequeath them cuicunque voluerint and that freely ab omni munduali obstaculo Doomsday also as we here shewed doth testifie as much and so doth the very word Alodium which the ancient Authors attribute to these lands So that the Thane-lands doubtless were free both from the Fine and Licence But as touching Folcland and land holden at will of the Lord tho' continued in ancient time to their children after the manner of Copy-holds it is no question but that they might both have Licence for aliening such lands and also pay consideration for it as our Copy-holders do at this day I find that one Brictrick in the time of King Etheldred about the year 984. bequeath'd legacies of good value unto his Lord's wife to intreat her Husband that this Brictrick's Will whereby he had devised many lands and goods to Monasteries and divers men might stand And that Thola the widow of Vrke a Thane of Edward the Confessor obtain'd licence from the same King Edward that she might devise both her lands and goods to the Monastery of Abbotsbury But of what nature these Licences were whether to alienate the land or to make a Will or to give the land to Monasteries as in Mortmain I cannot determine If they only intended alienation then I understand them only of Lands holden according to the custom of the time at will of the Lord or Folcland Yet in that Thola's Licence was as well to bequeath her goods expresly as her lands the Licence seemeth to be given therefore to make a Will which no man then could do if not a Thane Quaere But howsoever it be expounded it must not be extended to the Thane-lands or land hereditary for the reasons before alledged And as touching Fines for Licence of Alienation after our manner which the Report suggesteth they could not doubtless be in use among the Saxons for there are not found as I suppose here among us before the time of Edward I. and not established afterwards 'till 1. Edw. III. where the King granteth that from thenceforth lands holden in Chiefe should not be seized as forfeited which formerly they were for Alienation without Licence but that a reasonable Fine should be taken for the same See the Statute CHAP. XX. No Feodal Homage among the Saxons OUr word Man and homo in Latin have for many ages in old time been used by the German and Western Nations for a Servant or Vassal And from thence hominium and vassaticum afterwards homagium was likewise used for hominem agere to do the office or duty of a servant not to signifie Manhood as some expound it and so also Vassalagium But by little and little all these latter words have been restrain'd to note no more than our ceremonial homage belonging properly unto Tenures which I met not with among our Saxons nor any shew thereof in former ages unless we shall fancy that the Devil had it in his eye when he offered to give unto our Saviour all the Kingdoms of the world if he would fall down and worship him For here he maketh himself as Capital Lord our Saviour as the Feodal Tenant the Kingdoms of the world to be the Feud the falling or kneeling down to be the homage and the worshipping of him consisting as the Feodists expound it in six rules of service to be the Fealty Pardon me this idleness but from such missemblances rise many errors Homage as we understand it in our Law is of two sorts one more ancient than the other called homagium ligeum as due unto the King in respect of Soveraignty and so done more Francico to King Pipin by Tassilo Duke of Bavaria about the year 756. The other homagium feodale or praediale belonging to
every feodal Lord and not begun in France 'till Feuds were there made hereditary by Hugh Capet nor in England till William the Conqueror did the like as before appears The reason of it was to preserve the memory of the Tenure and of the duty of the Tenant by making every new Tenant at his entry to recognize the interest of his Lord lest that the Feud being now hereditary and new heirs continually succeeding into it they might by little and little forget their duty and substracting the services deny at last the Tenure it self We see at this day frequent examples of it for by neglecting of doing homage and those services Tenures usually are forgotten and so revolv'd to the King by Ignoramus to the great evil of their posterity that neglect it But the Saxons having only two kind of lands Bocland and Folcland neither of them could be subject unto homage for the Bocland which belong'd properly to their greater Thanes tho' it were hereditary yet was it alodium and libera ab omni seculari gravedine as before is shewed and thereby free from homage And the Folcland being not otherwise granted by the King or his Thanes than at will or for years or for life the tenant of it was not to do any homage for it For Justice Littleton biddeth us note that none shall do homage but such as have an estate in fee simple or fee taile c. For saith he 't is a maxim in law that he which hath an estate but for term of life shall neither do homage nor take homage But admit the Saxons had the ceremony of doing homage among them yet was it not a certain mark of Knights-service for it was usual also in Socage-Tenure And in elder ages as well a personal duty as a praedial that is done to Princes and great Men either by compulsion for subjection or voluntary for their protection without receiving any feud or other grant of land or benefit from them And he or they which in this manner put themselves into the homage of another for protection sake were then called homines sui and said commendare se in manus ejus or commendare se illi and were thereupon sometimes called homines ejus commendati and sometimes commendati without homines as in Doomsday often Tho' we have lost the meaning of the phrase yet we use it even to this day Commend me unto such a man which importeth as much as our new compliment taken up from beyond the Seas let him know that I am his servant See the quotations here annexed and note that tho' the Saxons did as we at this day call their servants and followers homines suos their men yet we no where find the word Tenure or the ceremony of homage among them nor any speech of doing or of respiting homage CHAP. XXI What manner of Fealty among the Saxons SO for Fealty if we shall apply every oath sworn by Servants and Vassals for fidelity to their Lord to belong unto Fealty we may bring it from that which Abraham imposed upon his servant put thy hand under my thigh and swear c. For the Saxons abounded with oaths in this kind following therein their Ancestors the Germans who as Tacitus saith took praecipuum Sacramentum a principal oath to defend the Lord of the Territory under whom they lived and to ascribe their own valour to his glory So likewise the homines commendati before mention'd yea the famuli ministeriales and houshold servants of Noble persons were in ancient times and within the memory of our fathers sworn to be faithful to their Lords These and such other were anciently the oaths of Fealty but illud postremo observandum saith Bignonius a learned French-man of the King 's great Council fidelitatem hodie quidem feudi causa tantum praestari shewing farther that Fealty was first made to Princes by the Commendati and Fideles without any feud given unto them and that the Princes afterwards did many times grant unto them feuda vacantia as to their servants but whether the oath of fealty were so brought in upon feodal tenants or were in use before he doth not determine In the mean time it hereby appeareth that fealty in those days was personal as well as feodal or praedial which imposeth a necessity upon them of the contrary part in the Report that if they meet with fealty among the Saxons they must shew it to be feodal and not personal for otherwise it maintaineth not their assertion I will help them with a pattern of fealty in those times where Oswald Bishop of Worcester granting the lands of his Bishoprick to many and sundry persons for three lives reserv'd a multitude of services to be done by them and bound them to swear That as long as they held those lands they should continue in the commandments of the Bishop with all subjection I take this to be an oath of Fealty but we must consider whether it be personal or praedial If personal it nothing then concerneth Tenures and consequently not our question If praedial then must it be inherent to the land which here it seemeth not to be but to arise by way of contract And being praedial must either be feodal as for land holden by Knight-service or Colonical as for lands in Socage If we say it is feodal then must there be homage also as well as fealty for homage is inseperable from a feud by Knight-service but the estates here granted by Oswald being no greater than for life the Grantees must not as we have shewed either make or take homage And being lastly but Colonical or in Socage it is no fruit of a Tenure in Capite by Knight-service nor belonging therefore to our question So that if fealty be found among the Saxons yet can it not be found to be a fruit of Knight-service in Capite as the Report pretendeth it See Fidelitas in my Glossary CHAP. XXII No Escuage among the Saxons What in the Empire THe word Scutagium and that of Escuage is of such novelty beyond the Seas as I find it not among the feudists no not among the French or Normans themselves much less among the Saxons Yet I meet with an ancient law in the Novella of Constantine Porphyrogenita Emperour of Greece in the year 780. that gives a specimen of it tho' not the name Quaedam esse praedia militaria quibus cohaereat onus Militiae ita ut possessorem necesse sit se ad militiam comparare domino indicante delectum vel si nolit aut non possit se ad delectum exhibere certam eo nomine pecuniam fisco dependere quae feudorum omnium lex est c. This tells us that there were certain lands to which the burden of warfare was so adherent that every owner of them was tyed upon summons made by his Lord to make his appearance therein or else to pay certain money by way
of a Fine as was common in all cases of Feodal Tenures This hath some shew of our Escuage and might well have taken that name from the manner of summons used in the Empire which was by erecting a post or pillar and hanging a Shield at the top thereof an Herald proclaiming that all who held in this manner should at such a day attend the Emperour in his voyage to Rome for taking the Crown of Italy or King of Romans which the Ligurine Poet thus expresseth Ligno suspenditur alte Erecto Clypeus tunc Praeco regius omnes Convocat a dominis feudalia jura tenentes c. as we have shew'd in our Glossary verbo Feudum He useth Clypeus for a Shield instead of Scutum and from this shield I say it might well be called Scutagium as also from the service performed in it cum hasta scuto Yet this summons was not called Schiltbannum but Heribannum that is indictio exercitus not indictio sâ—uti But to keep nearer the matter First our Saxons neither used the name nor the rules of the Norman Escuage for they called their going to war upon legal summons firdfare and utfare in Latin Expeditionem and Profectionem Secondly they were not tyed to any definite time of abode as for fourty days or more or less but as the law saith sÆ¿a a ðon ðearf sy for gemeneâ—â—â—re neode so as need shall require for common necessity Thirdly the mulct or forfeiture that the Tenant in Escuage incurred for not going forth upon that summons was uncertain among the Normans and us 'till the Parliament assign'd it but among the Saxons he that offended in Ferdwite that is in not going forth in the Expedition was certainly fin'd at 120 Fourthly whereas every Lord among us had the fine assess'd by Parliament of his own Tenant for the Lands holden of himself the King among the Saxons had the fine aforesaid of every delinquent whose Tenant or follower soever he were by all the Laws of the kingdom that is to say by the West-Saxon Law by the Mercian and by the Dane Law tho' otherwise they differ'd in their Heriots and many particular customs So that to talk of Escuage among the Saxons is without all colour or probability as I take it CHAP. XXIII No Feodal Escheate of Hereditary Lands among the Saxons EScheats of Eschoeir in French signifieth things coming accidentally as on the by or by chance The Fâ—odists therefore call them Caduca a cadendo and excadentias the black book of the Exchequer Escaetas excidentia and excadentia but among our Saxons I find no word to express them either properly or paraphrastically In our Law they be of two sorts Regal Escheats and Feodal Regal are those obventions and forfeitures which belong generally to Kings by the ancient right of their Crowns and supreme dignity Thus King David gave the lands of Mephibosheth accused of Treason unto Ziba tho' too hastily Feodal are those which accrue to every Feodal Lord as well as to the King by reason of his Seignory and of all the fruits of Tenure none so great as this if we may call it a fruit where the feud or tree it self resulteth back unto the Lord. Let us see therefore if we find any of these Feodal Escheats among the Saxons There is a shrewd text I confess in Canutus his Laws Qui fugiet à domino suo vel socio pro timiditate in expeditione navali vel terrestri perdat omne quod suum est suam ipsius vitam manus mittat dominus ad terram quam ei dederat si terram haereditariam habeat ipsa in manum Regis transeat Here is the appearance of a Tenure of a Feud of a Forfeiture and of an Escheat The Tenure lyeth between the Lord and his fugitive Vassal whom the Saxons and Germans called his Man we his Tenant The Feud in the Land quam dâ—mâ—nus â—i dederat The forfeiture in fugiendo in the Vassals running away And the Esâ—heat in the Lord 's seizing of the land manus mittat dominus in terram quam ei dederat Let the Lord take back the estate which he gave in the temporary feud But for the hereditary land he saith transeat non redeat in manum Regis All this is nothing in our case for I declared in the beginning that our question was fix'd upon such feuds as the Law of England taketh notice of at this day that is of feuds after they were become hereditary and perpetual not of those mention'd by Gerardus Niger which were temporary as at will of the Lord or for years or for life like them here intended by Canutus This very Law observeth the difference and discovereth also that feuds were not hereditary in his time and therefore giveth the feodal land being but a temporary estate back unto the Lord in whom the Reversion was by inheritance as a feodal right but giveth the hereditary Lands unto the King as a Regal Escheat for that there was no mean or intervenient Lord to claim them by any feodal tenure for that the hereditary lands among the Saxons otherwise called Bocland were holden of no body nor subject to any feodal service as we have often declared and could not therefore Escheat unto any feodal Lord. The Kentish custom of the father to the Bough and the son to the Plough suggesteth as much and sheweth also to have been the general use of England till the Conquerour introducing hereditary feuds put upon us therewith these greater feodal servitudes of Wardship Marriage Escheats c. So that the hereditary lands not being feodal in the Saxon's time nor the feodal lands hereditary there could then be no feodal Escheats among them And I take it to be considerable whether the land resumed by the Lord upon his Vassal's running away be properly an Escheat by the Law of Canutus or rather a penalty only impos'd in this particular case CHAP. XXIV Thaneland and Reveland what no marks of Tenure but distinctions of Land-holders THere is yet another assertion rather shewed than proved That the Thani majores or King's Thanes held by personal service of the King's person by Grand Serjanty or Knights-service in Capite And the reason following is that the land so held was in those times called Thane-land as land holden in Socage was called Reveland so frequently in Doomsday Haec terra fuit terra Regis Edwardi Thainland sed postea conversa est in Reveland Coke's Instit § 117. Thus the Report dischargeth it self upon my Lord Coke whose words be these It is to be observ'd that in the book of Doomsday land holden by Knights-service was called Thainland and land holden by Socage was called Reveland I reverence the opinion of that famous Lawyer with admiration but I suppose he speaketh not this ex tripode juridico For it is impossible that it and that which is before deliver'd out of the
times and that they were not made otherwise than for life or three lives for so I find them in the Abby-books And I also suppose that they to whom these lands were granted were the Thani Episcopi Thani Ecclesiae spoken of in Doomsday-book and that the lands themselves were such as in the same book are usually called Thain-lands Ecclesiae Episcopi and Abbatis But I see they were laden with many services which the lands of the King's Thane in respect of his dignity and person were free from Therefore when this very Bishop by another Charter granted tres cassatas three hydes of land in Cungle cuidam Ministro Regis to one of the King's Thanes nam'd Alfwold and to his Mother if she surviv'd during their lives he put no service upon the King's Thane but saith plena glorietur libertate excepta expeditione rata Pontis arcisve constructione the common exception in grants unto the Kings Thanes as before appeareth and yet the services thereby excepted belonged not either to the Bishop or the King himself otherwise than pro bono publico and common necessity After all this I beat still upon the old string that here yet is nothing to prove Wardship or Marriage or as the law then stood a Tenure by Knights-service for we have made it manifest that Expedition and building of Castles and Bridges were no Feodal services nor grew by Tenure And as for these that were tyed to ride and go up and down with their Lord Baraterius an old Feudist saith that a Knights fee may be given so ut Vassallus in diebus Festivis cum uxore Domini ad Ecclesiam vadat and the feudal law it self inferreth as much Lib. 2. Tit. 3. But our Bracton speaking of our Law here in England de Invest feud in his time touching such Tenants calleth them Rodknights alias Radknights Lib. 2. Cap. 35. nu 6. ut siquis debeat equitare cum Domino suo de Manerio in Manerium and saith not that it is Knight-service but that it is a Serjantie and that although such sometimes do Homage yet the Lord shall not have Ward and Marriage Admit notwithstanding that it were Knight-service and that the lands thus holden were Knights Fees during the life of the Tenant yet where is the Wardship Marriage and Releif Who shall undergo these servitudes since the Tenure and all the services are determin'd with the life of the Tenant CHAP. XXVII Inducements to the Conclusion SEeing then that neither the greater Thanes nor the lesser Thanes among the Saxons were subject to the rules of our Knight-service upon whom then if it were in use among them did it lye For as touching the Clergy it is said in the Laws of Edw. the Confessor cap. 11. that the King and the people magis in Ecclesiae confidebant Orationibus quam in Armorum defensionibus And the Report it self confesseth pag. 3. in pede That the possessions of Bishops and Abbots were first made subject to Knight-service in Capite by William the Conqueror in the fourth year of his reign for their lands were held in the times of the Saxons In pura libera eleemosyna free ab omni servitio seculari c. Though this be not true in the latter part being strictly taken for no doubt their lands were subject to the Trinodi necessitati viz. Expeditioni pontis arcisque constructioni as before appeareth yet cometh it very fitly to my purpose for hereby it is evident that if the Trinodis necessitas made no Tenure by Knight-service or in Capite in the Church Lands then neither did it in the Thane-lands as before we have shew'd and then much less in the land of Churles and Husbandmen commonly call'd the Socmanni for it is agreed on all hands that their lands were holden no otherwise than by Socage Therefore if all Kent in the Saxon's time were Gavelkind then could there be no Tenures by Knight-service in all that County For Glanvil Lib. 7. c. 3. telleth us That where the inheritance is divideable among the sons it is Socage And his reason is because that where 't is holden by Knight-service the Primogenitus succedit in toto This Kentish custom was ab initio the general Law of England and of all Nations Jews Greeks Romans and the rest and so continueth even till this day where the Feodal Law hath not altered it which first happen'd here in England when the Normans introducing their Feuds settled the whole inheritance of them upon the eldest son which the ancient Feodal Law it self did not as we before have noted till Feuds were grown perpetual The reason as I take it that begat this alteration was for that while the Feud did descend in Gavelkind to the Sons and Nephews of the Feodatorie the services were suspended till the Lord had chosen which of the Sons he would have for his Tenant and then it was uncertain whether the party chosen would accept of the Feud or not for sometimes there might be reasons to refuse it To return where I left it makes to the proof of all this that has been said and for conclusion seems to be unanswerable that the old inheritance which in the Saxons time belong'd to the Crown called in Doomsday Terra Regis and in the Law books Antient Demesne containing a great part of every County had not any Lands within it or within any Mannor thereof holden by Knight-service For Fitz-Herbert saith that Nul terres sont antient demesne forsque terres tenus en Socage And therefore if the Tenant in ancient Demesne will claim to hold of the Lord by Knights-service it is good cause to remove the Plea because that no Lands holden of a Mannor which is antient Demesne are holden by other services of the Lord than by Socage for the Tenants in antient Demesne are call'd Socmanni that is to say Tenants del carve Angl. le plough Thus far Fitz-Herbert Now if in the Mannors of the King himself there were then no Lands holden by Knight-service throughout all England it will then in all probability follow that there were none likewise among his Subjects in the Saxons time and consequently that our Feudal Law was not introduc'd before the Conquest Mr. Cambden by their own confession is of the same opinion and Mr. Selden himself whom they alledge against me is clearly with me as before I have shew'd If these our three opinions avail nothing we have yet a fourth to strengthen us great Bracton the most learned in our ancient Laws and Customs that hath been in this Kingdom who speaking of Forinsecum servitium as the Genus to these Tenures saith Lib. 2. cap. 16. Nu. 7. fol. 36. a. that it was call'd regale servitium quia spectat ad Dominum Regem non ad alium secundum quod in Conquestu fuit adinventum Here Bracton also refers the Invention to the Conquest but the Report waveth his opinion as well as ours notwithstanding
that none should be put to further trouble unless the King 's own necessity or the common good of the Kingdom required it Therefore the Bishops Earls Sheriffs Heretoches or Marshals of Armies Trithingreves Leidgreves Lieutenants Hundredors Aldermen Magistrates Reves Barons Vavasors Thungreves and other Lords of land must be all diligently attending at these Assemblies lest that the lewdness of offenders the misdemeanor Gravionum i. of Sheriffs and the ordinary corruption of Judges escaping unpunished make a miserable spoil of the people First let the laws of true Christianity which we call the Ecclesiastical be fully executed with due satisfaction then let the pleas concerning the King be dealt with and lastly those between party and party and whomsoever the Church-Synod shall find at variance let them either make an accord between them in love or sequester them by their sentence of excommunication c. Whereby it appeareth that Ecclesiastical causes were at that time under the cognizance of this Court But I take them to be such Ecclesiastical causes as were grounded upon the Ecclesiastical laws made by the Kings themselves for the government of the Church for many such there were almost in every King's time and not for matters rising out of the Roman Canons which haply were determinable only before the Bishop and his Ministers To proceed Before they entered into any causes as it is commanded in the Laws of Canutus which we mentioned par 2. ca. 17. the Bishop to use the term of our time which from hence taketh the original gave a solemn charge unto the people touching Ecclesiastical matters opening unto them the rights and reverence of the Church and their duty therein towards God and the King according to the word of God and Divinity Then the Alderman in like manner related unto them the Laws of the land and their duty towards God the King and Common-wealth according to the rule and tenure thereof Of all which because I find a notable precedent in a Synodal Edict made by Carolus Calvus Emperour and King of France in Concil Carissiaco An. Dom. 856. I will here add it not to shew that our Saxons took their form of government from the French but that both the French and they as brethren descending from one parent the German kept the rights and laws of their natural Country Episcopi quinque in suis parochiis Missi in illorum Missaticis Comitesque in eorum Comitatibus pariter placita teneant quo omnes Reipub. Ministri Vassi Dominici omnesque quicunque vel quorumcunque homines in iisdem parochiis Comitatibus sine ulla personaram acceptione excusatione aut dilatione conveniant c. That is The Bishops in their parishes or Diocesses and the Justices Itinerant or Aldermen in their Circuits and the Earls in their Counties shall hold their pleas together whereunto all Ministers and Officers of the Common-wealth all the King's Barons and all other whatsoever they be or whose Tenants soever they be within the same parishes or Counties without any respect of persons excuse or delay shall assemble together And the Bishop of that parish or Diocess having briefly noted sentences touching the matter out of the Evangelists Apostles and Prophets shall read them to the people and also the decrees Apostolick and Canons of the Church and in open and plain terms shall instruct them all what manner and how great a sin it is to violate or spoil the Church and what and how great pennance and what merciless and severe punishment it requireth with other accustomed necessary and profitable admonishments The Aldermen also or Justices shall note down such sentences of law as they call to mind and shall publish unto them the Constitutions of us and our predecessors Kings and Emperours gathered together touching this matter And the Bishops by the Authority of God and the Apostles and the Aldermen or Justices and Earls under the penalty of the King's Laws shall with all the care they can prohibit every man of the Kingdom from making any prey or spoil of the Church c. OF PARLIAMENTS WHEN States are departed from their original Constitution and that original by tract of time worn out of memory the succeeding Ages viewing what is past by the present conceive the former to have been like to that they live in and framing thereupon erroneous propositions do likewise make thereon erroneous inferences and Conclusions I would not pry too boldly into this ark of secrets but having seen more Parliaments miscarry yea suffer shipwrack within these sixteen years past than in many hundred heretofore I desire for my understanding's sake to take a view of the beginning and nature of Parliaments not meddling with them of our time which may displease both Court and Country but with those of old which now are like the siege of Troy matters only of story and discourse Because none shall go beyond me in this argument I will begin with the foundation of Kingdoms which of necessity must be more ancient than Parliaments for that a Parliament is the grand Council of the Kingdom assembled at the commandment of the King for advice in matters of State Our first labour is then to see what this Grand-Council was originally It is confest on all hands that the King is universal Lord of his whole Territories and that no man possesseth any part thereof but deriv'd from him either mediately or immediately This derivation thus proceeded The King in the beginning divided his whole territory into two parts one to be manured by his own Tenants and Husbandmen then call'd Socmen For the Kings of England us'd in those days to stock their grounds themselves like the Kings of Israel and by the profits thereof especially to maintain their Hospitality their Court and Estate having in every Mannour Officers and Servants for that purpose This part was Sacrum Patrimonium the inseperable inheritance of the Crown call'd in Doomsday Terra Regis and in Law the Ancient Demaine And because it belong'd to the husbandry of the King all that manur'd or held any part of this land were said to be Tenants in Socage and might not be drawn into the wars of which nature as touching their Tenure they continue at this day The other part of his whole territory he portioned out to Military men which tho' the other was the more profitable yet this was always held for the more honourable and therefore so divided this among his Nobles and chief servants and followers for supportation in his wars and Royal Estate To some in greater measure to others in less according to their merit and qualities Provinces to Dukes Counties to Earls Castles and Signiories unto Barons rendring unto him not ex pacto vel condicto for that was but cautela superabundans but of common right and by the Law of Nations for so I may term the Feodal-law then to be in our Western Orb all Feodal duties and services due from the Donees and their
heirs upon every gift grant and alienation tho' no word were spoken of them It appeareth by the Feodal-law from whence all that part of our Common-law that concerneth Tee and Tenures hath original and which our Common-law also affirmeth that there was always due ..... Those that thus receiv'd their Territories from the King were said to hold them in Capite for that the King is Caput Regni and were thereupon call'd Capitanei Regis and Capitanei Regni otherwise Barones Regis the King's men Tenants or Vassals who having all the land divided amongst them saving that which the King reserv'd to himself as Sacrum Patrimonium were also call'd Pares Regni and were always upon commandment about the person of the King to defend him and his Territories in war and to counsel and advise him in peace either Judicially in matters of Law brought before the King in his Palace which in those days was the only place of Royal justice or Politically in the great affairs of the Kingdom Hereupon they were not only call'd Praetorianum consilium as belonging to the King's Palace but Magnum concilium Regis and Magnum concilium Regni For that in those times it belonged only to them to consult with the King on State-matters and matters of the Kingdom insomuch as no other in the Kingdom possessed any thing but under them And therefore as in Despotical Government the agreement or disagreement of the Master of the Family concluded the menial and the whole Family so the agreement and disagreement of the chief Lord or him that held in Capite concluded all that depended on him or claimed under him in any matter touching his Fee or Tenure To this purpose seemeth that in the Laws of Edward the Confessor ratified by the Conqueror Debet etiam Rex omnia ritè facere in regno per judicium procâ—rum regni These great Lords according to this Archetype of Government set them by the King divided their lands in like manner among their Tenants and followers First they assign'd a portion ad victum vestitum suum which they committed over to their Socmen and Husbandmen to furnish them with Corn Victuals and Provision for Hospitality and briefly all things necessary to their domestical and civil part of life The residue they divided into as many shares or portions as might well maintain so many Military men whom then they call'd their Knights and thereupon the shares themselves Knights-fees i. e. stipendia militaria And these Fees they granted over to each of their principal followers furnishing them with so many Knights for the wars These Grantees that receiv'd their Estates from the Barons or Capitanei and not from the King were called Valvasores a degree above Knights and were unto their Lords the Capitanei or Barones Regis as they the Capitanei were unto the King and did in like manner subdivide their lands among their Socmen and Military followers who in old time were call'd Valvasini whom I take to be the same at this day that are the Lords of every Mannour if not those themselves that we call Knights as owners of a Knights-Fee For in this the Feodal-law it self is doubtful and various as of a thing lost by Antiquity or made uncertain by the differing manners of several Nations Insomuch that Valvasores and Valvasini grew to be confounded and both of them at last to be out of use and no other Military Tenures to be known amongst us than tenere pâ—r Baroniam and tenere per feodum militare But in a Charter of Henr. I. it is said Si exurgat Placitum de divisione Terrarum si interest Barones meos Dominicos tractetur in Curia mea si inter Vavassores duorum Dominorum tractetur in Comitatu c. Where the Valvasores were also and the Barons themselves Suitors and Attendants Bracton mentioneth them in Henry III's time to be Viri magnae dignitatis Nor was their memory clean gone in Richard II's days as appeareth by Chaucer Yet do I not find in any of our ancient Laws or Monuments that they stood in any classick kind of Tenure other than that we may account the Baron Vavasor and Knight to be as our Lawyers at this day term them the Chief Lord Mesne and Tenant But herein the Feodal-law of our Country differ'd from that of Milan and other parts For there the Valvasini could invest which we call infeosse none under them in fee that is to hold of them by Knights-service And with us every Tenant Par aval might in infinitum till the Statute of Quia Emptores Terrarum enfeoffe another by Knight-service and to do all the services unto him that he did to his Mesne Lord. So that by this means a line of Knights-services might be created of a dozen yea twenty Mean-Lords and Tenants wherein every of them might have his prochine Tenant obliged unto him in the duties and services that his Lord Paramont which held of the King was to do and yeild unto the King himself for the same lands viz. Honour Ward Sustenance   Safety Marriage  give keep  Attendance Relief Counsel to Aid Defence of his Person Tribute Fidelity  Defence of his Patrimony     All which in ancient time while the Feodal-law flourished were well understood to be comprehended under the profession of Homage and the oath of Fidelity which every Feodal Tenant or as others call him Vassal usually did unto his Lord. Honour promis'd by the Tenant upon his knees in doing Homage which tho' it be the greatest and most submiss service that a Freeman can do unto his Lord yet the profession of it to the meanest subject is as ample and submiss yea in the very same words that to the King himself Attendance to follow and attend him in the war at his own charge and in peace with suite of Court Therefore Tacitus calleth them Comites Defence of his person for if he forsook his Lord being in danger it was forfeiture of life land and all he had Defence of his Signiory that nothing of his lands rents or services were withholden or withdrawn Profit by Ward Marriage and Relief as they fell Tribute by way of Aid to make his eldest son a Knight to marry his eldest daughter ransom himself being taken prisoner yea in some places to be an hostage for his Lord. Sustenance that being faln into poverty according to that in the Canon law spoken of a Patron Alatur egenus Counsel and Advice in which respect the Tenant was bound ordinarily once in every three weeks to come to his Lord's Court and there as a Judge with other of his Peers to censure the causes of his Signiory and to direct his Lord as the cause occurrent did require and always to keep his counsel This to the meanest Lord was in the nature of the King 's Great Court or Counsel call'd afterward a Parlyment Fidelity for
consent of the Bishops and Barons For in his Charter whereby he divideth the Court-Christian from the Temporal he saith thus Sciatis quod Episcopales Leges communi Concilio consilio Archiepiscoporum meorum caeterorum Episcoporum Abbatum omnium Principum regni mei emendandas judicavi And this seemeth to be that same Commune Concilium totius Regni whereby he made the Laws he speaketh of in his Charter of the great Establishment aforesaid William Rufus in An. 1094. calls Episcopos Abbates cunctosque Regni Principes to a Council at Rochingheham 5. Id. Mar. Henry I. de communi Concilio gentis Anglorum saith Matthew Paris posuit Dunelmensem Episcopum in vinculis Where Gentis Anglorum might be extended to such a Parlament as we use at this day if the use of that time had born it But Eadmere speaking of a Great Counsel holden a little after at Lambith calleth it Concilium Magnatum utriusque Ordinis excluding plainly the Commons And to that effect are also all the other Councils of his time But our later Chroniclers following Polydore as it seemeth for they cite no Author do affirm that Henry I. in the sixteenth year of his reign held the first Parlament of the three Estates The truth whereof I have taken some pains to examine but can find nothing to make it good Eadmerus who flourisht at that very time writing particularly of this Council or Assembly saith XIII Kal. Aprilis factus est conventus Episcoporum Abbatum Principum totius Regni apud Serberiam cogente eos illuc sanctione Regis Henrici I. And among other causes handled there he sheweth this to be the principal viz. That the King being to go into Normandy and not knowing how God might dispose of him he desir'd that the succession might be confirm'd on his son William Whereupon saith Eadmer omnes Principes facti sunt homines ipsius Willielmi fide Sacramento confirmati Florentius Wigorniensis who liv'd at that time and dy'd about two years after reporteth it to the same effect Conventio Optimatum Baronum totius Angliae apud Sealesbiriam 14. Cal. Apr. facta est qui in praesentia Regis Henrici homagium filio suo Gulielmo fecerunt fidelitatem ei juraverunt Here is no mention of the Commons whom in likelyhood they should not have pretermitted if they had been there assembled contrary to the usual custom of those times Nor doth any succeeding Author that I can find once touch upon it I conceive there might a mistaking grow by Polydore or some other for that many of the Commons if not all were at this time generally sworn to Prince William as well as the Barons were and as after in the year 1127. to Maud his daughter Prince William being then dead But I no where find in all the Councils or Parlaments if you so will call them of this time any mention made of any other than the Bishops Barons and great Persons of the Realm And so likewise in the time of King Stephen The first alteration that I meet with is in the twenty second year of Hen. II. where Benedict Abbas saith Circa festum S. Pauli venit Dominus Rex usque ad Northampton magnum ibi celebravit Concilium de Statutis regni sui coram Episcopis Comitibus Baronibus terrae suae per consilium Militum Hominum suorum Here Militum Hominum suorum extendeth beyond the Barons and agreeth with the Charter of King John as after shall appear Yet Hoveden speaking of this Council doth not mention them but only termeth it Magnum Concilium But there hapn'd about this time a notable alteration in the Common-wealth For the great Lords and owners of Towns which before manur'd their lands by Tenants at Will began now generally to grant them Estates in fee and thereby to make a great multitude of Free-holders more than had been Who by reason of their several interests and being not so absolutely ty'd unto their Lords as in former time began now to be a more eminent part in the Common-wealth and more to be respected therefore in making Laws to bind them and their Inheritance But the words Militum Hominum suorum imply such as held of the King in Capite not per Baroniam and therefore were no Barons yet such as by right of their Tenure ought to have some voice or Patron to speak for them in the Councils of the Kingdom For holding of the King as the Barons did they could not be patronized under them And doubtless they were not many at this time tho' much encreased since the making of Domesdei book where those few that were then are mentioned And it may be the word Hominum here doth signify those that serv'd for Burrough-Towns holden of the King for it must be understood of Tenants not of Servants To grope no further in this darkness The first certain light that I discover for the form of our Parliaments at this day is that which riseth fourty years after in the Magna Charta of King John The words whereof I will recite at large as they stand not only in Matthew Paris but also in the Red-Book of the Exchequer with some little difference hapning in the writing Et Civitas Londinensis habeat omnes antiquas libertates liberas consuetudines suas tam per terras quam per aquas Praetereà volumus concedimus quod omnes aliae Civitates Burgi Villae Barones de quinque Portubus omnes Portus habeant omnes libertates omnes liberas consuetudines suas Et ad habendum commune Consilium Regni de Auxiliis assidendis aliter quam in tribus casibus praedictis de Scutagiis assidendis summoneri faciemus Archiepiscopos Episcopos Abbates Comites Majores Barones Regni sigillatim per literas nostras Et praetereà faciemus summoneri in generali per Vice-Comites Ballivos nostros omnes alias qui in Capite tenent de nobis ad certum diem scil ad terminum 40. dierum ad minus ad certum locum in omnibus literis summonitionis illius causam summonitionis illius exponemus Et sic facta summonitione negotium procedat ad diem assignatum secundum consilium eorum qui praesentes fuerint quamvis non omnes summoniti venerint Here is laid forth the Members the Matter and the Manner of summoning of a Common Council of the Kingdom which as it seemeth was not yet in the Records of State call'd a Parlament The Members are of three sorts First the Arch-Bishops Bishops Abbots Earls and the Greater Barons of the Kingdom so call'd to distinguish them from the Lesser Barons which were the Lords of Mannours Secondly Those here before mention'd by Bened. Abbas to be call'd to Clarenden that held of the King in Capite whom I take to be now the Knights of the Shire And thirdly those of Cities Burroughs and
Towns call'd Burgesses and the Barons of the Cinque-ports The first sort are to appear personally or by particular Proxies for the words as touching them are Summoniri faciemus sigillatim but as touching the others it is Summoniri faciemus generaliter c. not that all should come confusedly but that they should send their Advocates which commonly are but two to speak for them These the French in their Parliaments call Ambasiatores and Syndicos In the first rank the Earls and greater Barons have their place in this Council for that they hold of the King in Capite by a Baronie And the Bishops and Abbots with them of the second rank so likewise for that it was declared and ordained in the Council of Clarendon that they should have their possessions of the King as a Barony and should be suiters and sit in the King's Court in judgements as other Barons till it came to the diminution of Members or matter of death But this Council of Clarendon did rather affirm than give them their priviledge For the Prelates of the Church were in all ages the prime part of these great Councils In the third rank the Burgesses and Barons of the Cinque-ports have their place not so much in respect of Tenure for they were not conceived to be owners of lands but for that in Taxes and Tallages touching their goods and matter of Trade they might have some to speak for them as well as other Members of the Kingdom But here then ariseth a question how it cometh to pass that every poor Burrough of England how little soever it be two excepted have two to speak for them in this great Council when the greatest Counties have no more It seemeth that those of the Counties whom we call Knights served not in ancient time for all the Free-holders of the County as at this day they do but were only chosen in the behalf of them that held of the King in Capite and were not Barones majores Barons of the Realm For all Freeholders besides them had their Lord Paramount which held in capite to speak for them as I have shewed before and these only had no body for that themselves held immediately of the King Therefore King John by his Charter did agree to summon them only and no other Freeholders howbeit those other Freeholders because they could not always be certainly distinguish'd from them that held in capite which encreased daily grew by little and little to have voices in election of the Knights of the Shire and at last to be confirm'd therein by the Stat. 7. Henr. IV. and 8. Henr. VI. But to come to our question why there are but two Knights for a County It may well seem to be for that in those times of old there were very few besides the Barons that held in capite as appeareth by that we have already spoken and that two therefore might seem sufficient for these few as well as two for the greatest Burroughs or City of England except London And it may be that of the four which serve for London two of them be for it as it is a City and two other as it is a County tho' elsewhere it be not so But when two came first to be chosen or appointed for the rest of the Burrough or County I cannot find It seemeth by those Synods that were holden in the times of the Saxon Kings and by some after the Conquest that great numbers of the common people flowed thither For it is said in An. 1021. Cum quamplurimis gregariis militibus ac cum populi multitudine copiosa And An. 1126. Innumeraque Cleri populi multitudine and so likewise in An. 1138. and other Synods and Councils By what order or limitation this innumera populi multitudo came to these Assemblies it appeareth not Bartol that famous Civilian and Hottoman according with him thus expoundeth it in other places Nota quod Praesides Provinciarum coadunant universale Parlamentum Provinciae quod intellige non quod omnes de Provincia debent ad illud ire sed de omnibus Civitatibus deputantur Ambasiatores qui Civitatem repraesentant And Johan de Platea likewise saith Vbi super aliquo providendum est pro utilitate totius Provinciae debet congregari generale Concilium seu Parlamentum non quod omnes de Provincia vadant sed de qualibet Civitate aliqui Ambasiatores vel Syndici qui totam Civitatem repraesentent In quo Concilio seu Parlamento petitur proponi sanum ac utile consilium But our Burgesses as it seemeth in time of old were not call'd to consult of State matters being unproper to their Education otherwise than in matter of Aide and Subsidy For King John granteth no more unto them than ad habendum commune consilium regni de auxiliis assidâ—ndis if his Charter be so pointed that this clause belong to that of the Liberties granted to them which is very doubtful and seemeth rather to belong to that which followeth otherwise there are no words at all for calling them unto the great Councils or Parlaments if you so will term them of that time And yet further it is to be noted that this whole branch of his Charter touching the manner of his summoning a great Council was not comprised in the Articles between him and his Barons whereupon the Charter was grounded but gain'd from him as it seemeth afterward And that may be a reason why it is left out in the Magna Charta of Henry III. confirm'd after by Edward I. in such manner as now we have it The Charter of these Articles I have seen under his own Seal After the death of King John I find many of these great Councils holden and to be often named by the Authors of that time Colloquia after the French word Parlament but no mention in any of them of Burgesses saving that in An. Dom. 1225. Regis 10. it is said that the King held his Christmass at Westminster Praesentibus clero populo cum Magnatibus regionis and that the solemnity being ended Hugh de Burgo the King's Justice propounded to the Arch-Bishop Bishops Earls Barons aliis universis the losses the King had received in France requiring of them one XV th And in the year 1229. the King summoneth to Westminster Archiepiscopos Episcopos Abbates Priores Templarios Hospitalarios Comites Barones Ecclesiarum Rectores qui de se tenebant in capite about the granting a tenth to the Pope wherein those that held in capite are call'd as in Henr. II. to the Council of Clarendon and as the Charter of King John purporteth but no mention is here made of Burgesses THE ORIGINAL OF THE FOUR TERMS Of the Year By Sir HENRY SPELMAN Kt. Printed in the Year 1684. from a very uncorrect and imperfect Copy Now Publish'd from the Original Manuscript in the BODLEIAN Library Sir William Dugdale in his Origines Juridiciales Chap. 32.
another as it is to be seen in France it self When the Roman Emperors grew potent in Germany and the German Princes came to be Emperors the Germans generally forsook their ancient custom spoken of by Tacitus and received the Roman Law The rest of the Angli that remained in Germany and came not over into England made a Law about the year of our Lord 900. That it should be lawful for a Free-man to dispose his inheritance by Will as he pleased The Normans kept the old custom in part and left it in the other part They suffered him that had neither wife nor children if he were twenty year old to make a Will and bequeath his moveable goods as he listed either to or from his kindred So likewise if he were married and his wife dead Having children he could dispose but of a third part And so might man or woman of 16. years old But land which they according to the Civilians called immoveable goods no man amongst them might dispose of by his Will In some other parts of France as in Champain they disposed both moveable and immoveable that is goods and lands according to the Civil Law The Civil Law custom they called Lex Romana the other Lex Barbara Our Saxon Ancestors by direction of their Clergy who chiefly affected the Roman manners seem also to have observed the Civil Law in making of Wills both in substance for disposing Lands and Goods and much in the form and ceremony of making and publishing the same As Carolus Magnus in France disposed the Lands of his great dominions between his three sons Lewis Pepin and Charles by his last Will. So by his example King Ethelwulfus here divided his Lands by his Will between his three sons Aethelbald Aethelred and Aelfred King Aelfred in the like manner disposed both his Lands and Goods by his Will now extant And many other Saxons by their Wills in writing bequeathed Lands and Goods with their Bodies unto Monasteries That herein they followed the Civil Law is manifest by the Saxon Will of Birtrick and Elfâ—uith his wife made about the year 980. according to the manner of that time by them both jointly First it seemeth to be made in calatis Comitiis that is in an assembly called together for that purpose Then whereas the Civil Law requireth necessarily VII witnesses here were a dozen least it might be defective in that one was a woman and some other under age or Bond-men The disposition of Lands as well as of Goods is by the Civil Law and therefore the course is more solemn Which also this well observeth both for disposing Land and Goods and also for the solemnity of the course But most evidently it appeareth to be according to the Civil Law in that the man and his wife joyn both together in it which was neither in use nor resolv'd to be good till the Novel Constitution of Theodosius and Valentinian did authorise it After this Constitution that kind of Testament became so common that Marculfus who lived about the year 660. hath left unto us an especial formula or precedent of it as it was then in use in France And saith in it that it was ut Romanae Legis decrevit authoritas And concludeth it with an imprecation or curse against such as should violate it as doth also the Will of Birtrick With the like solemnity of witnesses eight in number besides a Lady did Elfere another Saxon before Birtrick bequeath the Town or Land of Snodland to the Church of S. Andrews Of the Probate of Wills or Testaments After the Will was thus composed the Roman use was to have the Testator and Witnesses to subscribe it then binding it up close with thred to seal it with their Seals which upon producing of it they or many of them were to view and acknowledge before the Praetor or Judge And then rupto lino the thred being cut it was opened and published and copies of it delivered to the parties under a Publick Seal the Original remaining in the publick Register The ancient manner of opening publishing or as we call it proving of Wills before the Magister Census is described by John Fabri But nearer to our purpose is that in the Formulae of Marculfus of a Will proved in a City or Corporation before the Magistrate there or of a Town before the Defensor Plebis For a Will by the Civil Law and the use of our neighbour Nations might be proved before divers Officers and in divers places We already mentioned the Praetor but Justiman the Emperor ordained that in Rome none should be opened save by the Magister Census In the Provinces by a Constitution of Theodosius the Rectores Provinciarum and where the access to them was uneasy there Donations and Wills made in Cities and Corporations might be exhibited and proved before Magistratus Municipales the Magistrates there in other Towns before the Defensor Plebis According to these two last are the formulae of Marculfus and another in Brissonius From these Constitutions of the Emperors grew the various manner of Probate of Wills amongst us in ancient time With the Magister Census being proper only to the City of Rome we have nothing to do But as we were once a Province of the Empire so our Ancestors received and held the manner of Provinces For the Rectores Provinciarum which with us were the Earls of the Counties had the cognisance or Probation of Wills as shall by and by appear So also had divers of our Magistratus Municipales Magistrates of Cities and Corporations As that which I am best acquainted with my Neighbours of Lenn Episcopi now Kings Lynn in Norfolk And instead of the Defensores Plebis in an ordinary Town the Lord of the Town or Mannor both had and hath that priviledge with us in divers places All this while there is no mention of any Ecclesiastical Person which we must now look into The fourth Council of Carthage ordained that Episcopus tuitionem testamentorum non suscipiat and this Canon Gratian has taken into the Body of the Canon Law whereto the Gloss saith Tuitionem id est apertionem sc coram eo non apperiantur sed coram Magistro Census C. de testam L. Consulta And tho' it addeth vel dicatur quod non sit advocatus ad tuendum testamentum yet that seemeth an idle interpretation for tho' Epiphanius maketh mention that Bishops in old time judged Causes yet it was never known that they pleaded Causes But it is apparent that the Clergy-men in those days took upon them to prove Wills even in Justinian's time who flourished An. Dom. 530. And therefore he prohibited them not only by a Constitution but also by a mulct of 50. pound weight of Gold saying Absurdum est namque si promiscuis actibus rerum turbentur officia
Richard Tribunus Regis or Marshal to King Henry II. 166. Hundradors 51. Hundreds their original 50. Hundred Courts 51. Hunting forbidden to Clergy-men 109 112 113 114 115. Hydes what 17. When disus'd 4â— I Ibreneys Rad. de 190. Iceni 135. Eorum nomina derivatio ibid. Icenia 135. Ejusdem termini ibid. Coelum solum 13â— Ina King of the West Saxons adjusted the quantity of Rent for every Plough-land 15. By whose advice he made his Laws 61. Made a strict Law against working on Sundays 57. Ingolsthorp 146. Inland what 12. Intwood 157. K. John's Magna Charta 63. John Marshal to King Henry I. 165. Irregularity of Clergy-men wherein it consists 109 112. I se fluvius unde dictus 135. Ejusdem aestus 139. Islepe Sim Arch-bishop of Canterbury 90. Jury taken out of several Hundreds in a County 53. Jurours prohibited to have meat c. till agreed of their Verdict 89. Jus Gentium 2. Justices of Evre when instituted 27. Justinian the Emperor when he flourish'd 129. He prohibited Clergy-men to take cognizance of Wills ibid. Justitium what 72. K Keninghall 158. Kent the custom of Gavelkind in that County 43. Kettringham 15â— The King the fountain of all Feuds and Tenures 1â— The King to have his Tenants lands till the heir has done homage 3â— The King universal Lord of his whole Territories 37. Anciently granted Churches to Lay-men 115 Knight what among the Saxons 51 58. Why there are but two Knights of the Shire for a County 64. Knight's-fees 3 4 51 58. When introduc'd 45. The number of them ibid. The value of a Knights-fee ibid. Knight-service 2 7. Kymberley 158. S Sacha Soca what in the Saxon tongue 51. Saliques bring the German feodal Rights into France 5. Sall in Norfolk 151. Sandringham 146. Sanhadrim when and where the Judges of it sate 75. Satrapies among the Saxons 50. Saxons the first planters of the German Rites in Great Britain 5. Their Charters translated 7. The manner of making their conveyances 8 Distinction of persons among them 11. How many degrees of Honour they had 16. How they held their lands 40. What oblig'd 'em to so many kinds of services ibid. Saxons very much given to drunkenness 89. When they took possession of England 100. They swept away the Roman Laws there 101 Yet took somewhat from them 102. Why their Laws were not at first put in writing ibid. When they had written Laws ibid. The use of wills unknown to the ancient Saxons 127. Our Saxons observ'd the Civil Law in their wills 128. Scutagium 36 37. Sedgeford 146. Segrave Nicholas Marshal of England 167. Seignory wherein it consists 2. Services how many sorts of 'em upon lands 17. Personal services 40. Praedial ibid. Alodial ibid. Beneficiary ibid. Colonical ibid. Servitia militaria what 46. The difference between them and Servitutes militares ibid Seymour Edward Duke of Somerset Nephew of King Edw. VI. 169. Made Lord Treasurer and Earl Marshal of England ibid. Shardlow Joh Justice of Oyer had a licence to hear causes on a Festival 95 96. Sharnburn 146. History of the Family 189 c. Shelton 156. Shouldham 142. Shyre gemot what 53. Signioral authority what 6â— Snetsham 146 189 190 c. Socage 3 7 33 43. Socmen 1â— 15 57. Sprowston 153. Stanchow 146 19â— Star chamber Court 94 95. Stigand Arch-bishop of Canterbury depos'd 119. Stock-Chappel 146. Stow-Bardolfe 140. Strangbow Gilb Earl of Pembroke and Marshal of the King's Palace 165. Suiters of the Hundred 51. When and by whom call'd at this day ibid. Summons the manner of it in the Empire 36. Sunday how exempted from Law Suits 76. Sustenance what 59. Swasham 141. Swainmote-Courts 85. Syndici who 63 64. Synod of Eanham when held 78. T Talbot George Earl of Shrewsbury 171. Executed the Office of Lord High Steward of England ibid. Tallagium 60. Tasburg 156. Tassilo Duke of Bavaria did homage to King Pipin 34. Tenant lands of how many sorts 4. Tenants by Knight-service 4. Tenant in capite 10. Tenant in menalty ibid. Tenant Paraval ibid. Tenant's land or the Tenancy 12. Tenants what they were in ancient time 51. Tenants in Socage 57. Tenants forc'd to pay a fine upon the marriage of a Daughter 60. To furnish their Lords with provisions ibid. To present them with gratuities ibid. Tenure in capite 2. By Knight-service 4 7. The Original of Tenures 4. Tenure in Socage 4 7. Tenures for Life ibid. What tenures were in use among the Saxons 7. When first us'd ibid. No tenures in capite among the Saxons 10. Tenure in capite of two sorts ibid. The fruits of feodal tenures 24. The name of tenures not us'd by the Saxons 40. Terminus what it signifies 71. When the word became frequent ibid. Terms their definition and etymology 71. Several acceptations of the word 70. Full term and Puisne term ibid. The Original of Terms 73 77. Two Terms among the Welch 74. The Terms laid out according to the ancient Laws 82. The ancient bounds of Hilary-Term 82 83. Of Easter-Term 83. Of Trinity-Term 84 85. Of Michaelmass-Term 85 86. How Trinity Term was alter'd 87. Michaelmass-Term how abbreviated 88. Why the Terms are sometime extended into the Vacation 95. Terra Regis 57. Terrae testamentales 12. Terrington 138. Tertium denarium 14. Testaments and last wills not in use among the ancient Hebrews 127. Not found in Scripture before Christ's time ibid. Expresly mention'd by St. Paul ibid. Not us'd by the Saxons or Normans ibid. The custom of making wills from whom taken up ibid. How many witnesses to a will requir'd by the Civil Law 128. Thane or Theoden who 10 11. Their several kinds 16. Not properly a title of Dignity ibid. The Etymology of their name ibid. The quality of their Persons ibid. The nature of their Land 17. The word Thane has no relation to war 21. A Thane's Heriot 31. Thane-lands not subject to feodal service 18. Charters of Thane-lands granted by Saxon Kings 19 20. The occasion of granting them 21. Thane-lands alienated ibid. Devised by will 22. Granted to women ibid. No service upon 'em but what was express'd ibid. Dispos d of at the pleasure of the owner 23. Charged with a Rent ibid. Might be restrain'd from alienation ibid. Thane-lands and Reveland what 38. Thani majores minores 16. Thani Regis ibid. Theinge 50. His jurisdiction ibid. Theowes and Esnes who 11. Thetford 158. Thokus Dominus de Sharnburn 189. Thola the widow of Ore had a grant of certain lands of K. Edw. the Confessour 20. Obtain'd a Licence to devise her Lands and Goods 34. Thrimsa what 15. Thrithingreves or Leidgerevâ—s their Office and Authority 52. What causes were usually brought before ' em ibid. Tribunus militum rei militaris aut exercitus 165. Tribute 59. Trimarcesia what 3. Trinity-term its ancient bounds 84 85. How it was alter'd and shortned 87. Trinodis necessitas 17 43. Trithings or Lathes 50. Why so call'd 52. Turfs why so call'd 139 140. Tydd