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-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-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.
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
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
for some portions also of their Out-lands These were after called feoda rustica beyond the Seas with us Socage-lands and were holden at pleasure of their Lords either by rendring part of the profits thereupon growing or reared as victuals especially in Saxon called Feorms c. whereof see the rates in the Laws of King Ina Chap. 70. or by doing some works of Husbandry upon the Lord's Inlands now called his Demeans as Tillage Carriage Harvest-works c. Among all these diversities of services none cometh so near to the nature of Feuds and Tenures as the Beneficiary do Let us therefore consider them the more seriously by that notable pattern of them left unto us from Bishop Oswald who dividing much of the land of his Church of Worcester into those kind of portions which after the Feodal word then in use he called Beneficia granted the same unto his Thanes and followers not by the name of his milites or tenentes but of his fidos subditos for the term of three lives according to the manner which they retain in those parts even to this day and reserving to his Church and successors not homagium sâ—rvitium the material words in Tenure to create Knights-service in the Feodal Law but the services mentioned in his Charter secundum Conventionem cum eis factam sponsionem suam as the very words are there expresly But hear the Charter or rather Epistle as he himself calleth it which the King confirmed and a Councell The Aranga or preamble of it is a thankful acknowledgement of King Edgar's bounty and goodness to him the Bishop and his Church the conclusion after the manner of those times a curse and heavy imprecation against all such as shall spoil or violate the same Both which being long and nothing to our purpose I think convenient here to pretermit The rest is as followeth under the title given it in the Manuscript 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 Oswaldes-Lawes-Hundred DOmino meo charissimo Regi Anglorum Edgaro ego Oswaldus Wigorniensis Ecclesiae Episcopus c. Quare quomodo fidos mihi subditos telluribus quae meae traditae sunt potestati per spatium temporis trium hominum id est duorum post se haeredum condonarem placuit tam mihi quam ipsis fautoribus consiliariis meis cum ipsius Domini mei regis licentia attestatione ut fratribus meis successoribus scil Episcopis per Chirographi cautionem apertius enuclearem ut sciant quid ab eis extorquere juste debeant secundum conventionem cum eis factam sponsionem suam unde hanc Epistolam ob cautelae causam componere studui nequis malignae cupiditatis instinctu hoc sequenti tempore mutare volens abjurare a servitio Ecclesiae queat Haec itaque conventio cum eis facta est ipso Domino meo Rege annuente sua attestatione munificentae suae largitatem roborante confirmante omnibusque ipsius regiminis sapientibus principibus attestantibus consentientibus hoc pacto eis terras Sanctae Ecclesiae sub me tenere concessi Hoc est ut omnis Equitandi lex ab eis impleatur quae ad Equites pertinet ut pleniter persolvant omnia quae ad jus ipsius Ecclesiae juste competunt scil ea quae Anglice dicuntur Ciricsceott Toll id est thelonium Tacc id est swinseade caetera jura Ecclesiae nisi Episcopus alicui eorum quid pardonare voluerit seseque quamdiu ipsas terras tenent in mandatis Pontificis humiliter cum omni subjectione perseverare etiam jurejurando affirment Super haec etiam ad omnis industriae Episcopi indigentiam semet ipsos praesto impendant Equos praestent ipsi Equitent ad totum piramiticum opus Ecclesiae calcis atque ad Pontis aedificum ultro inveniantur parati Sed Venationis sepem Domini Episcopi ultronei ad aedificandum repperiantur suaque quandocunque Domino Episcopo libuerit Venabula destinent Venatum Insuper ad multas alias indigentiae causas quibus opus est Domino Antistiti saepe furnisci sive ad suum servitium sive ad regale explendum semper illius Archiductoris dominatui voluntati qui Episcopatui praesidet propter beneficium quod illis praestitum est cum omni humilitate subjectione subditi fiant secundum ipsius voluntatem terrarum quas quisque possidet quantitatem Decurso autem praefati temporis curriculo viz. duorum qui post eos qui eas mode possident haeredum vitae spatio in ipsius Antistitis sit arbitrio quid inde velit quomodo sui velle sit inde ita stet sive ad suum opus eas retinere si sic sibi utile judicaverit sive eas alicui diutius praestare si sic sibi placuerit velit ita duntaxat ut semper Ecclesiae servitia pleniter ut praefati sumus inde persolvantur Ast si quid praefatorum delicti praevaricantis causa defuerit jurum praevaricationis delictum secundum quod Praesulis jus est emendet aut illo quo antea potitus est dono terra careat Siquis vero Diabolo instigante c. The sum of all aforesaid is that the Bishop's Tenant shall pay and do as followeth First That they shall perform all duties that belong to Horsemen That they shall pay all things that are due unto the Church and perform all other rights that belong to it That they shall swear to be in all humble subjection at the command of the Bishop as long as they shall hold these lands of him That as often as the occasion of the Bishops shall so require they shall present themselves to be ready for it and shall both furnish him with Horses and ride themselves That of their own accord they shall be ready to perform all the work about the Steeple of that Church and for the building of Castles and Bridges That they shall readily help to fence in the Bishop's Parks and to furnish him with Hunting weapons when he goeth a hunting That in many other cases when the occasion of the Lord Bishop shall require whether it be for his own service or for the King's service they shall in all humbleness and subjection be obedient to the chief Captain or Leader of the Bishoprick for the benefit done unto them and the quantity of land which every one of them possesseth That after the expiration of the three lives the land shall return again to the Bishoprick That if there be any defect in performing the premisses by reason that some shall vary or break the agreement the Delinquent shall make satisfaction according to the justice of the Bishop or shall forfeit the land which he had of his gift I suppose that this was the common manner of grants and reservations in those
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
charta scripta est Anno Dominicae Incarnationis 958. Mundi denique status Christi moderatoris disponente c. Ego Ethelredus totius Albionis Basileus cuidam mihi obsequentium Aethelwoldo vocitatione pro ejus placabili Obsequio quandam terrae particulam i. e. decem manentia in loco quem coloni Maningforde appellant in perpetuam concedo haereditatem quatenus ille bene perfruatur ac prospere possideat quamdiu presenti fruitur vita post vitae suae terminum cuicunque sibi placuerit haeredi derelinquat Sit autem praesata terra liberrima ab omni munduali obstaculo cum omnibus ad eam pertinentibus in campis pascuis pratisque ac cursibus aquarum tribus tantummodo causis exceptis i. e. Expeditione pontis arcisve restauratione Si quis autem hanc donationem pervertere studuerit perpetuae maledictionis incurrat reatum gehennae aeternum sustineat incendium nisi mortis ante exitum hanc praesumptionem emendare curaverit Istis terminis ambitur praefata tellus Ærst of eastreƿeardan c. So King Ethelred in the Charter to his Thane Sealwyne granteth five cassatos in Readdn cum omnibus c. cuicunque sibi libuerit cleronomo direlinquat haereditate c. Sit autem istud praefatum rus liberrimum ab omni mundali obstaculo in magnis ac modicis campis pascuis pratis tribus tantummodo rationabiliter rebus exceptis quae usuali ritu observantur i. e. cum glomerata sibi expeditioni compulerit populari commilitonum confligere castra atque cum sua petivit pontis titubantia muniri vada ac cum concinni turma urbium indigent muniri stabiliter septa c. Dat. anno Dominicae incarnat 1014. Indict 12. In nomine Dei almi agiae Sophiae c. Idcirco ego Cnute Rex Anglorum gubernator rector quandam ruris portionem decem septem viz. terrae mansas illo in loco ubi jamdudum solicolae illius regionis nomen imposuerunt at Abbodesbury meo fideli Ministro quem notis affines Orc appellare solent in perpetuam confirmo haereditatem quatenus ille bene perfruatur ac perpetualiter possideat quamdiu Deus per suam ineffabilem misericordiam vitam illi vitalem spiritum concedere voluerit deinde namque sibi succedenti cuicunque voluerit cleronomi jure haereditario derelinquat ceu supra diximus in aeternam haereditatem Maneat igitur hoc nostrum donum immobile aeterna libertate jocundum cum universis quae ad eundem locum pertinere dinoscuntur tam in magnis quam in modicis rebus in campis pascuis pratis rivulis silvis aquarumque cursibus Excepto communi labore quod omnibus liquide patet viz. Expeditione pontis constructione arcisve munitione Si quis autem c. And King Edward the Confessor granting duas mansas dimidiam in Wudeton c. to Thola widow of the foresaid Orc whom in a Saxon Charter he calleth his Man that is his Thane saith thus In aeternam haereditatem concedo quatenus illa habeat perpetualiter possideat hanc meam regalem donationem quamdiu vivat post obitum suum cuicunque voluerit haeredi relinquat Sit autem praefatum rus liberum ab omni seculari gravedine tam in magnis quam in modicis rebus in campis pascuis pratis silvis aquarumque decursibus tribus exceptis quae omnibus hominibus communia sunt viz. Expeditione pontis arcisve restauratione After all these I will yet add one other of King Eadgar's having somewhat of note above the rest as anon we shall observe It was made to the new Monastery of Hide near Winchester in these words Annuente altitoni moderatoris imperio c. Ego Edgar totius Britanniae basileus quasdam villas ut nominantur Dunketone habens quinque hidas terrae Ecclesiam Sueyse cum 28. hydis terrae c. Concedo in puram perpetuam eleemosynam novae Wintoniensi Ecclesiae beato Petro Apostolorum principi dicatae c. cum omnibus utensilibus pratis viz. pascuis rivulis aeterna largita sint haereditate c. Sint autem praedictae villae rus mansiones terrae rivuli omni terrenae servitutis jugo liberae imperpetuum tribus exceptis Rata viz. Expeditione pontis arcisve restauratione Si quis autem hanc nostram donationem in aliud quam constituimus transferre voluerit privatus consortio Sanctae Dei Ecclesiae aeternis baratri incendiis c. puniatur c. Whatsoever the phrase be in the Saxon original for I take this to be a translation of the Norman time it here maketh the lands to be given in Franckalmoign but without mention of Tenendum and yet sheweth that they were tyed to Expedition c. Yea and calleth it notwithstanding puram Eleemosynam whereas tho' in libera Eleemosyna a rent in old deeds hath sometime been reserv'd yet can it not be called pura if any rent or service at all were reserved to the Donor I have recited these Charters the more at large for that they apparently discover by many reasons which we shall set forth in the next Chapter that the Thanes possess'd not their Thane-lands either by any feodal service or by way of Tenure CHAP. X. Observations upon the precedent Charters shewing that the Thane-lands or Expedition were not feodal or did lye in Tenure THese Charters present unto us the general manner of granting and possessing of Thane-land among the Saxons during the time of their Monarchy 'till the very coming of the Normans And there is to be observed in them as in other before mention'd what hereafter followeth First That the word Thane which is here and usually interpreted Minister that is an officer or servant of ðenian servire noteth nothing belonging properly to the war and is not therefore to be understood as Bracton fancieth the word Barones to be quasi robur belli or to import any matter either of Feodal service or of Tenure Secondly That as we have formerly observed upon other Charters so there is not in any of these now produced one word either of Tenure or of Feodal signification which presently after the Conquest became innumerable as brought in by the Conquerour Yet well may it be that Edward the Confessor having his education in Normandy might as travellers use to do bring some Norman words and manners into England Thirdly That instead of tenere and tenendum by which the Norman feudists implied a Clientary if not servile dependance that the Tenant hath upon the Lord the Saxons used habeat possideat fruatur or perfruatur and elsewhere gaudeat words of freedom and immunity So likewise for tenementa signifying things holden of a superior proprietary they used mansas manentia and mansiones à manendo as places of abode or casatas à casa for a dwelling-house otherwise call'd hyda quasi tectum à tegendo including
beginning of this Term viz. Octabis Sancti Michaelis à die Sancti Michaelis in quindecim dies and consequently making the beginning of it fall a fortnight later than before Wherefore the first day in this Term will always be the twenty third day of October unless it happen to be Sunday for then it must be defer'd till the day following upon which account we find it accordingly placed on the twenty fourth for the year 1681. This is all the alteration that Statute mentions and therefore for the end of Michaelmass-Term I refer the Reader to what our Author has said already in the 15 th Chapter It may not be amiss in pursuit of our Author's method to set down the motives of making this abbreviation as we find them reckon'd up in the Preamble to that Statute There we find that the old beginning of Michaelmass-term was generally found to be very inconvenient to his Majesty's subjects both Nobles and others First For the keeping of Quarter-sessions next after the feast of St. Michael the Archangel Secondly For keeping their Leets Law-days and Court-Barons Thirdly For the sowing of land with Winter-corn the same being the chief time of all the year for doing it Fourthly For the disposing and setting in order of all their Winter husbandry and business Fifthly For the receiving aud paying of Rents Sixthly Because in many parts of this Kingdom especially the most Northern Harvest is seldom or never Inned till three weeks after the said Feast All which affairs they could before by no means attend in regard of the necessity of their coming to the said Term so speedily after the feast of St. Michael the Archangel to appear upon Juries and to follow their Causes and Suits in the Law SECT V. Other Considerations concerning Term-time HAving thus laid out the frame of the Terms both according to the Ancient and Modern Constitutions it remaineth that we speak something of other points properly incident to this part of our division touching Term-time viz. 1. Why the Courts sit not in the Afternoons 2. Why not upon some whole days as on Grand-days double Feasts and other exempted days and the reason of them 3. Why some Law business may be done on days exempted 4. Why the end of Michaelmass-Term is sometimes holden in Advent and of Hilary-Term in Septuagesima Sexagesima and Quinquagesima 5. Why the Assizes are holden in Lent and at times generally prohibited by the Church 6. Of Returns 7. Of the Quarta dies post 8. Why I have cited so much Canon Civil Feodal and foreign Laws in this discourse with an excursion into the original of our Laws CHAP. I. Why the High Courts sit not in the Afternoons IT is now to be considered why the high Courts of Justice sit not in the Afternoons For it is said in Exodus that Moses judged the Israelites from Morning to Evening And the Romans used the Afternoon as well as the Forenoon yea many times the Afternoon and not the Forenoon as upon the days called Endotercismi or Intercisi whereof the Forenoon was Nefastus or Vacation and the Afternoon Fastus or Law-day as we shewed in the beginning And the Civilians following that Law do so continue them amongst us in their Term at this day But our Ancestours and other the Northern Nations being more prone to distemper and excess of diet as the Canon Law noteth of them used the Forenoon only lest repletion should bring upon them drowsiness and oppression of spirit according to that of St. Jerome Pinguis Venter non gignit mentem tenuem To confess the truth our Saxons as appeareth by Huntington were immeasurably given to drunkenness And it is said in Ecclesiastes Vae Terrae cujus Principes mane comedunt Therefore to avoid the inconvenience depending hereon the Council of Nice ordained that Judices non nisi jejuni leges judicia decernant And in the Council of Salegunstad it was after decreed Vt lectio Nicaeni Concilii recitetur which being done in the words aforesaid the same was likewise there confirm'd According to this in the Laws of Carolus Magnus the Emperour it is ordained Logobard lib. 2. Vt Judices jejuni causas audiant discernant and again in the Capitulars Caroli Lodovici ne placitum Comes habeat nisi jejunus Where the word Comes according to the phrase of that time is used for Judex as elsewhere we have at large declared To the same effect is the Capitular ad Legem Salicam and out of these and such other Constitutions ariseth the rule of the Canon Law that Quae à prandio fiunt Consultationes inter decreta non referuntur Yet I find that Causes might be heard and judged in the Afternoon for in Capitulars lib. 2. Can. 33. and again lib. 4. Can. 16. it is said Causae viduarum pupillorum pauperum audiantur definiantur ante Meridiem Regis vero Potentium post Meridiem Which tho' it seem contradictory to the Constitutions aforesaid yet I conceive them to be thus reconcilable that the Judges sitting then but seldom continued their Courts both Forenoon and Afternoon from Morning till Evening without dinner or intermission as at this day they may and often do upon great Causes tho' being risen and dining they might not meet again yet might they not sit by night or use candle light Quod de nocte non est honestum judicium exercere And from these ancient Rites of the Church and Empire is our Law derived which prohibiteth our Jurours being Judices de facto to have meat drink fire or candle-light till they be agreed of their verdict It may be here demanded how it cometh to pass that our Judges after dinner do take Assizes and Nisi prius in the Guild-hall of London and in their Circuits I have yet no other answer but that ancient Institutions are discontinued often by some custom grating in upon them and changed often by some later Constitution of which kind the instances aforesaid seem to be For Assizes were ordained many ages after by Henry II. as appeareth by the Charter of Beverly Glanvil and Radulphus Niger and Nisi prius by Edward I. in the Statutes of Westminster 2. tho' I see not but in taking of them the ancient course might have been continued if haste would suffer it CHAP. II. Why they sit not at all some days THough there be many days in the Terms which by ancient Constitutions before recited are exempted from Law-business as those of the Apostles c. and that the Statute of Edw. VI. appointed many of them to be kept holy-days as dedicated not unto Saints but unto divine worship which we also at this day retain as holy-days Yet do not the high Courts forbear sitting in any of them saving on the feast of the Purification the Ascension St. John Baptist All-Saints and the day after tho' not a feast called All-souls When
igitur mandamus quod cum Archiepiscopus Ebor. hoc nobis concesserit literas suas patentes nobis habere fecerit Iter Justic nostr in Comitat qui ..... sunt jurisdictioni praedicti Archiepiscopi Ebor. aliis Comitat. subsint jurisdictioni Archiepiscopi Cantuar. usque ad praefatum terminum si opus fuerit continuetis solita prudentia solitudine Quod non dubitamus vos esse facturos negotiis nostris expediendis ad commodum honorem nostrum intendent Dat. apud Westm 3. die Nov. In custodia Franc. Bacon de Graies-Inn Armig. 1. Febr. An. 1633. Discreto Viro Domino Tho. Weyland Illustr Reg. Angl. Justic R. miseratione divina Norwic. Episcopus salutem honoris augmentum Cordis nobis est ut omni tempore Justitia debitum celerem sortiatur effectum Hinc est quod cum Ass ultimae praesentationis super Ecclesiam de Kirkby omnium Sanctorum inter Imann quae fuit uxor Ric. de Thwait querentem Ricardum lc Cam defendentem coram vobis sit arannata ut intelliximus Vobis auctoritate praesentium permittimus quod non obstante instanti Quadragesima Assisam praedictam inter partes praedictas etiamsi juramentum interveniat licite capiatis Valete Dat. apud Buketon 11. Kal. Martii Anno Domini M. CC. LXXVI FINIS A SHORT APOLOGIE For Arch-bishop ABBOT Touching The death of PETER HAWKINS By an unknown Hand WITH A LARGE ANSWER To this APOLOGIE By Sir HENRY SPELMAN Kt. As also Several Letters relating to the same Fact With a Copy of The Dispensation for Irregularity Granted to the Arch-bishop And a Treatise Of the Original of TESTAMENTS and WILLS And of their PROBATS And to whom it anciently belonged By the said Sir HENRY SPELMAN Kt. AN APOLOGIE For Arch-bishop ABBOT Touching The death of PETER HAWKINS the Keeper Wounded in the Park at Bramsil July 24. 1621. 1. IT is certain that in foro conscientiae this case may not only deservedly produce a fear and trembling in him who was the accidental cause thereof but may justly make the tallest Cedar in Lebanon to shake in recounting with his inward man what sin it is that hath provoked God to permit such a rare and unusual action to fall out by his hand which maketh him for the time to be Fabula vulgi and giveth opportunity to the enemies of Religion of all kinds to rejoice to speak their pleasure to fill their Books and Libels within the Realm and perhaps beyond the Seas And that concerning his Calling as well as his Person not only for the present but also in future ages beside Grief to his friends and some Scandal to the weak who do not rightly apprehend things but raise questions which few men can resolve To all which may be added the interpretation of it by his Majesty graciously or otherwise and the forfeiture that in rigorus construction of Law may be put upon him although held for no great Delinquent besides the providing for a Widow and four Fatherless children All which may pierce a heart that is not senseless and day and night yeild him matter enough of troubled meditations 2. And yet lest he that intended no ill much less to that person a poor man and a stranger to him should be swallowed up with sorrow he is not devoid of some comfort as that Consensus facit peccatum and Voluntas facit reatum and where those concurr not misdemeanours are properly contra nullum Decalogi praeceptum And that when God speaking of such casual death Exod. 21. 13. useth these words If a man lye not in wait but God deliver him the slain man into his hands Divines collect thereupon that it is not humanum but à Deo which no man's Providence can absolutely prevent For what God will have done shall be and no Creature may dare to set him to school in what manner or by what person he will have it perform'd And Deuteronom 19. 6 10. God putting the case of the man slain by the iron of his Neighbour's ax slipping off appointeth Cities of Refuge lest he should be slain also who as he saith was not worthy of death and again that innoxius sanguis innocent blood be not shed in the Land Where we may collect that such cases are foreseen and order'd by God himself and that no Calling no not that of the Priest is free from that which God will have accomplish'd since he must communem hominum subire sortem Homo sum humani nihil a me alienum puto And Quod cutque contingere potest cuivis potest although of all others the Priest should be most wary what he attempt and how 3. There is no Text in the Old Testament which directly distinguisheth the Priest from other men in case of Blood but there are examples which may not be apply d to Evil for that were to pervert them resolving one scruple which is made As Moses was no Priest yet he gave down the Law and he consecrated Aaron the High-priest notwithstanding the time was that he had kill d the Aegyptian The Levites slew 3000. of the Israelites after the Idolatry with the golden Calf Phineas who was afterwards the High-priest slew the Israelitish man with the Midianitish woman and was blessed by God for it Samuel hewed Agag to pieces Jehoiada the Priest commanded Athalâ—ah the Usurper to be slain The Machabees fought for their Countrey and so took away the lives of many a man Paul was consenting to the death of Stephen Peter although rebuk'd for it cut off the ear of Malchus Josephus the Jew of the seed of the Priests was Captain over Judah and fought divers times Out of all which I do only make this collection That the Priest s restraint from blood is not ex jure divino but ex jure positivo Pontificio soil vel Canoniâ—o or Ecclesiastico as we call it out of caution for purity and decency and good congruity for so holy a Calling which cometh so near God and attendeth at his Altar 4. See then in the Ecclesiastical Law what Grace is afforded to him who against his will hath casually been the death of another There is in the Decretals a title De homicidio voluntario vel casuali concerning the latter of which there be many Rescripts which demonstrateth that in human life such things do frequently fall out In these there are five Chapters Cap. Lator Cap. Dilectis siliis Cap. Ex Litteris Cap. Ex Litteris tuae Cap. Joannes Where the Rubrick is Homicidium casuale non imputatur ei qui non fuit in culpa and Homicidium casuale non imputatur ei qui dedit operam rei licitae nee fuit in culpa And there the Decision is evermore that there is no Irregularity in promovendo or in promoto ad sacros ordines This is the more to be noted because it is not the Interpreters but the body of the Law And the Gloss thereupon hath Nota quod