money in liew thereof Although this Tenure by the first creation thereof be perpetuall yet that the soueraignty thereof should not still remaine vnprofitable to the first Lord the whole benefyt thereof going continually to the vassall or tenant it is prouided that the Soueraigne or chiefe Lord the first yeare the heyre or Successor of the vassall comes vnto his land shall haue the whole reuenue of his liuelihood for that yeare or a certeine summe of money in token of the retorne thereof vnto the Lord and the redemption thereof made againe by the tenant which by the Law of the Nouels is called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is well nigh the same that we call liuery which euery heire that holdeth in Knights seruice sueth out before he take possession of his land as heire to his ancesters This Tenure is got eyther by Inuestiture or by Succession Inuestiture is the same that we call Creation and is the primier grant of a feude or tenure to any with al rights and solemnities thereto belonging wherein the homager or feodatarie for the most part vpon his knées promiseth faith and allegeance vnder a solemne oath vnto his Lord and his successors Succession is whereby the eldest sonne succéedeth the father in his inheritance and if he faile and haue no issue then the next brother and so in order successiuely and if there be no sonne then the next heire male and if their bée no heyre male then the land escheats vnto the Lord. For the Lumbards from whom the feudes first came or at the least were chiefly deriued from them directing all their policie as the Lacedemons did to matters of warre had no seminine feudes among them but after by processe of time there were created aswell Feminine feuds as Masculine feuds insomuch as where there was no issue male to put them from it women did succéed in the inheritance Of Feuds some are regall some not regall Regall are those which are giuen by the prince only neither doe belong to any inferior to giue Of these some are Ecclesiasticall as Archbishopricks Bishopricks and such like Others are Ciuile or Temporall as Dukedomes Earledomes Vicounts and Lords who by that are distinguished from the rest of the people that they haue the conducting of the Princes Armie at home and abroad if they be thereto appointed and haue right of Peeres in making of Lawes in matters of triall and such other like businesses Not Regall are those which hold not immediatly of the Prince but are holden of such Ecclesiasticall or Ciuile States which haue had their Honours immediatly from the Prince Besides of Feuds some are Liege others not Liege Liege Feuds are they in the which the vassall or feodatorie promiseth absolute fealtie or faith to his Lord against all men without exception of the King himselfe or any other more auncient Lord to whom besids he oweth alleagance or seruice Of this sort there is none in this Realme of England but such as are made to the King himselfe as appeareth by Littleton in the title of Homage wherein is specially excepted the faith which the Homager oweth to his Lord the King Feuds not Liege are such wherin Homage is done with speciall reseruation of his faith and alleageance to the prince and Soueraigne Of such as are Vassals or Liege men some are called Valuasores maiores others Valuasores minores Valuasores maiores are such as hold great places of the State vnder the Emperour or King as are the degrées of Honour before named and are called Péeres of the Land which only giues Nobilitie Valuasores minores are those which are no Péers of the Land and yet haue a preheminence aboue the people and are as it were in a middle Region betwéene the people and the Nobilitie such as are Knights Squires and Gentlemen The Feuds are lost by sundry waies by default of issue of him to whom it was first giuen which they call Apertura feodi by surrender therof which by them is termed Refutatio feodi by forfaiture and that was in two sorts either by not doing the seruice that his tenure did require or by committing some villenous act against his Lord as in conspiring his Soueraignes death defiling his bed or deflowring his daughter or some other like act treacherous to his Lord and vnworthy of himselfe And so much of the Ciuile Law and the Bookes thereunto pertaining Now it followeth I doe in like order speake of the Canon Law which is more hardly thought vpon among the people for that the subiect thereof in many points is of many grosse and superstitious matters vsed in the time of Papistrie as of the Masse and such other like trumperie and yet there are in it beside many things of great wisdome and euen those matters of superstition themselues being in a generalitie well applyed to the true seruice of God may haue a good vse and vnderstanding The Canon Law hath his name of the Gréeke word Canon which in English is a Rule because it leads a man straight neither drawes him to the one side or the other but rather correcteth that which is out of Leuill and Lyne The Canon Law consisteth partly of certaine Rules taken out of the holy Scripture partly of the writings of the auncient fathers of the Church partly of the ordinances of general prouincial Councels partly of the Decrees of Popes of formerages Of the Canon Law there are two principall parts the Decrées and the Decretals The Decrées are Ecclesiasticall constitutions made by the Pope and Cardinals at no mans suite and are either Rules taken out of the Scripture or Sentences out of the auncient Fathers or Decrées of Councels The Decrees were first gathered together by Ivo Bishop of Carnat about the yeare of our Lord God but afterward polished and perfected by Gratian a monke of the order of Saint Bennets in the yeare 1149. and allowed by Eugenius the Pope whose Confessor hee was to bee read in Schooles and to bee alledged for Law Of all the seuerall volumes of the Canon Law the Decrées are the auncientest as hauing their beginning from the time of Constantine the great the first Christian Emperour of Rome who first gaue leaue to the Christians fréely to assemble themselues together and to make wholsome lawes for the well gouernment of the Church The Decrées are diuided into thrée parts wherof the first teacheth of the origen and beginning of the Canon law and describeth and setteth out the rights dignities degrées of ecclesiasticall persons and the manner of their elections ordinations and offices and standeth of one hundred and ten distinctions The second part setteth out the causes questions and answeres of this Law which are in number 36. and are full of great varietie wisdom and delight The third and last part containeth matter of consecration of all sacred things as of Churches bread and wine in the Sacrament what daies and Feasts the Primitiue Church vsed for the receiuing thereof of
make Enuches themselues be made Enuches if they escape aliue their goods to be forfeited to the Exchequer and themselues be imprisoned all the dayes of their life Such as by force steale away women themselues such as are their abbetters and helpers are to dye therefore and that it shall not be lawfull for her that is carried away to marrie to him that doeth carrie her away and that if her father do giue his consent to such marriage he is to be banished but if she marry him without her fathers consent then is she not to take benefit by her fathers will or any other thing that is her fathers These and sundry matters of great importance and necessarie for the well gouerning of a Common wealth are conteyned in the Authenticks which I passe ouer with drie foote not because they are not necessarie to bée knowen but because I would not cloy the Reader euen with those things which are good All these workes are the labour of Iustinian as either gathered together by him out of auncient Lawyers bookes and such Emperors decrées as went before him or else were decréed ordeyned by himselfe as matter occasion offered it selfe the yongest of them is néere eleuen hundred yeares of age that is within 500. yeres after Christ or not much otherwise The last Tome of the Ciuill Law is the Feudes that is the bookes of Customes Seruices that the subiect or vassall doth to his Prince or Lord for such lands or fées as he holdeth of him This péece of the Law although it was not much in vse in the old Emperors dayes yet Iustinian himselfe séemeth to acknowledge them in his Nouell constitutions calling them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and those which are more carefull to séek out the beginning of them bring them some from the auncient Clientles or retinewes the ancient Romans before Christ his time had as Budeus doth some other from Alexander Seuerus time who as Lampridius in the life of Alexander saith gaue such lands as he won out of the Enemies hands to his Lords Marchers and his souldiors that they should be theirs their heires for euer so they would be Souldiers neyther should they come at any time to the hands of any priuat man saying they would more lustily serue if they fought for their owne land which opinion commeth next to the auncient border-grounds of the Romans whereof there is a Title in the 11. Booke of the Code Defundis Limitrophis that is of Border-ground Others refer it ouer to Constantine the greats time which inacted for the benefit of his souldiors that such Lordships lands as before time they had their wages out of should passe ouer vnto their heires and be appropriated to their familie or stocke so that they found and mainteyned continually a certaine number of souldiors From whence soeuer it descended this is certaine that it came verie late to be a particuler volume of the Law it selfe The compilers or gatherers together thereof were Obertus de Horto and Giraldus Compagist two Senators of Millaine who partly out of the Ciuill Law and partly out of the Customes of Millaine drew the same but without forme or order The word it selfe is a barbarous word but had his origen notwithstanding as Isidor saith from the word Foedus being a good Latin word and so is to be interpreted tanquam Feodum that is as a thing couenanted betwéene two Others deduce it from the word Fides as it were in Latin Fideum and by a more pleasant pronunciation Feudum whereupon such as are Feudataries to other are called in Latin Fideles because they owe fayth and allegeance to such whose feudataries they are who in the Lomhard tongue are called Vassals Beside Fealtie which some call Hominium by the Feudists is tearmed Homage for the nature of a Feude is this that it draweth with it fayth and homage so that such as are feudataries or fee men professe themselues to owe fayth to such to whom they are in fée and that they are his men insomuch as when a fée man dyeth his Heyre doth make fayth and doth his homage to the Lord as is well séene both in the Lord Spirituall and Temporall of this land who both in their creation and also in theyr succession one after an other sweare an oath doe their homage to their Soueraigne and doe pay other dueties which are simbols and signes of their subiection to their soueraigne And for others that are vnder the degrée of Barons and yet are fée men vnto the King and so do not manuell obedience vnto his Maiestie they pay yearely something in respect of theyr homage according to the quantitie or qualitie of the fée or tenure they hold of the Prince A Feude in English may be called a tenure which caused Littleton when he treated of Feudes so far forth as they are here in vse in England Such as are all those which are called in Latin Feuda militaria Feuda scutiferorum called by Iustinian 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which are by the Lawes of the land tearmed by the named of knights seruices and Escuage to call them by the names of Tenures A Feude is a grant of lands honors or fées made either to a man at the will of the Lord or Soueraigne or for the Feudataries owne life or to him or his heires for euer vnder condition that he and his heires in case where the feude is perpetuall doe acknowledge the gyuer and his heyres to be their Lord and Soueraigne and shall beare faith and alleageance vnto him and his for the said Tenure and shall doe such seruice to him and his for the same as is betwéene them couenanted or is proper to the nature of the feude Of Feudes some are Temporall some other are Perpetuall Temporall feudes are those that are gyuen eyther for terme of a mans life or for yeares or at the will of the Lord for some seruice done or to be done such as are Annuities giuen to Lawyers for counsell Pensions giuen to Phisitions for their aduise Stipends to any Teacher of artes and sciences Fées for kéeping of Towers or Castles called by Feudists Castalia and is by Littleton called Castle ward although by him it is taken for a state of inheritance Perpetuall Feudes are rights which men haue by grant from the Soueraigne or chiefe Lord of the soyle or territorie to haue hold vse occupie and inioy honors manors lands tenements or hereditaments to him and his heires for euer vpon condition that the said vassall or partie his heytes and successors doe homage and fealtie to his Lord his heires and successors for such honors landes or hereditaments and doe him eyther seruice in warre according as it is couenanted betwéene the Lord and his vassall or such other seruice as the nature of his tenure doth require or if he fayle therein shall either find some other in his roome to do the same or else pay a certaine summe of
where the taking of one stone away is the ieopardie of the whole buylding But yet let those to whom this doth appertain consider whither in this it were better to please God than man But now to returne thither where I left as euery good Bishop or any of his Clergie did wyn any countrie village which the Latins call Pagus to the Faith so they erected vp a Church there and appointed a Pastor or Minister ouer them to informe them in the Law of God and to minister Hespinian de origine Monochatus the Sacraments vnto them and set out for his maintenance the Tythe of that Page or Village to which he was assigned Pastor which they did in Tythes rather than in any other prouision both because it was the Lords inheritance in all ages and appointed by him for the maintenance of such as serued in his Tabernacle during the dispensation of the mysteries of the Law now was returned again into Gods hand by the expyration of the demise of them made vnto the Leuites during the said time of dispensation and also because the people would be the more easilie induced to part with one part out of euery ten of all the fruites of their grounds and labours of their hands vnto the Minister than if there had bin any other reguler imposition laied vpon them for certein it is Villages Pages came more hardly and more lately vnto the Faith than great Townes Cities did and therupon grew that name of opposition which was betwéene Christians that dwelt in Cities the Infidels that dwelt in Pages that the one were called Pagans the other were called Christians taking their names vpon the difference of the places where they dwelt But from these Pages as I haue said came first the vse and practize of Tythes in the Christian world insomuch as after when any Law was made as concerning Tithes they held them euermore for a Parochian right onely in no sort at the disposition â—a Cum contingat de Decim verb. de sure coiÌ„â—n gâ—os of the Bishop but in such cases as before is rehearsed insomuch that if a Bishop challenged any Church in his Diocesse he challenged it not in respect of any fee simple he had in it but in regard of the Spirituall Iurisdiction he had ouer it And therefore the Authors of this opinion were far out of Ab. ca. nuper de Decim et ca. deputati de Iudicijs num 16. the way when as they thought the Bishop had like right in the Tythes of a Church of his Patronage to giue bestow them as he listeth as he hath in his demeanes and other his Temporall lands eyther to lease them out or diuide them into Tenancies as him best liketh Neyther is that case cléere or without question whereby they pretend a Bishop being seised in a Mannor may prescribe the Tithes of the demeanes therof by an immemorial prescription for him his Tenants and Farmers for yeares and Tenants at will to be exonerated acquited and priuiledged from all Tythes growing thereupon which if it be against an other person than himselfe may hap to be true although perhaps also that be questionable for that it is not long since Lay people were capable of that right neyther could themselues by Law of the Church at any time graunt such Spirituall rights as these are to a Lay man either in Feudum or Emphiteusim without danger of Excommunication Ab. ca. ad hâ—â— de Decimis nâ—mer 4. or deposition of their owne place as hath béen before shewed But if himselfe or his predecessors were Parsons there either in the right of their Bishoprick as hath bin of late before remeÌ„bred or that the Benefice was annexed vnto their Sea for the prouision of their Table as many Bishopricks had some one or more benefices appropriat vnto them to this purpose then could they not prescribe the Tithes in such sort as is pretended For albeit no prescription proceeds without possession yet no man can prescribe against himself although he be in possession for that euermore there must be two persons in a prescription the one which doth prescribe the other against whom it is prescribed and therfore in these cases it is neuer said they hold their Tythes by prescription but in the right of their Church or Parsonage In eyther of which cases if they were Lords of the Mannor Parsons of the Parsonage together it is not to be thought they would so respect the good of their Farmer as that they would either hurt their Church or preiudice their owne Table for their farmers sake which they must doe if they suffer a Prescription to run against the Church or themselues to exempt the demeanes of the Mannor from payment of Tythes which were due both to the Church themselues For they were men that both knew in their conscience how much they were bound vnto the Church in this behalf they were not ignorant what preiudice they should doe vnto themselues if by prescription they should yéeld to exempt so necessary a prouision for the maintenance of their Hospitality as the tithes of the demeanes of a whole Mannor their tenancies are for no small part of their commendation stood in those dayes in their hospitalitie therefore it is not to be presumed that they would easilie cut off any prouision that was fit for the same Beside if by either of these two wayes the Bishop were Parson in the place then did the fruites of the Benefice during euery Vacation of the Bishoprick not come to the King as they now do wherby the Parsonage Mannor are both consolidated into one for that they are now both holden to be Temporalties but the Parsonages came to the Archbishops of the prouince as a spiritualtie granted to his Sea by priuiledge during the vacancie of the Seas of such Bishops as were in his Prouince as may appeare by the Lord Archbishops Records of Canterbury so that it cannot Eâ— Registro ArchiepÌ„i Cant. be thought any prescription could run in these times being so often interrupted by vacancies as they were Which being well considered the conclusion is very doubtful whither euer any prescription ran in this case neyther would it easilie be beléeued by those that know the course of Antiquity but that there hath a Iudgement passed in this part therefore will I stay my selfe here and prosecute this point no further I intended to say nothing in this treatise of the Tithes of Minerals other subterraneous bodies because I know by Law they are holden by the like right as the Tithes of those things are which grow in the vpper face of the earth but yet because I sée there is a question made of them by some that will make euery thing controuersable that is due vnto the Church I will satisfie also their curiositie And therefore for Mettals other substances which are digged out of the bowels of the