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A59093 The reverse or back-face of the English Janus to-wit, all that is met with in story concerning the common and statute-law of English Britanny, from the first memoirs of the two nations, to the decease of King Henry II. set down and tackt together succinctly by way of narrative : designed, devoted and dedicated to the most illustrious the Earl of Salisbury / written in Latin by John Selden ... ; and rendred into English by Redman Westcot, Gent.; Jani Anglorum facies altera. English Selden, John, 1584-1654.; Littleton, Adam, 1627-1694.; White, Robert, 1645-1703. 1682 (1682) Wing S2436; ESTC R14398 136,793 167

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discretion fit for the service These persons going about and that they might believe their own eyes taking a view of the several Lands having made an estimate of the provisions which were paid out of them they reduced it into a sum of pence But for the total sum which arose out of all the Lands in one County they ordered that the Sheriff of that County should be bound to the Exchequer Adding this withal that he should pay it at the Scale Now the manner of paying the tryal of the weight and of the metal by Chymical operation the Melter or Coyner and the surveyor of the Mint are more largely handled and explained by my self in some other work of mine 13. That he might the more firmly retain Kent to himself that being accounted as it were the Key of England 't is the famous Mr. Camden tells the Story he set a Constable over Dover-Castle and made the same person Warden of the Cinque Ports according to the old usage of the Romans Those are Hastings Dover Hith Rumney and Sandwich to which are joyned Winchelsey and Rye as Principals and other little Towns as Members 14. To put the last hand to William I add out of the Archives this Law not to be accounted among the last or least of his William by the Grace of God King of the English to all Counts or Earls Viscounts or Sheriffs and to all French born and English men who have Lands in the Bishoprick of Remigius greeting This Remigius was the first who translated the Episcopal See from Dorchester to Lincoln Be it known unto you all and the rest of my Liege Subjects who abide in England that I by the common advice of my Arch-Bishops and the rest of the Bishops and Abbots and all the Princes of my Kingdom have thought fit to order the amendment of the Episcopal Laws which have been down to my time in the Kingdom of the Angles not well nor according to the Precepts of the holy Canons ordained or administred Wherefore I do command and by my Royal Authority strictly charge that no Bishop or Arch-deacon do henceforth hold Pleas in the Hundred concerning Episcopal Laws nor bring any cause which belongs to the Government of Souls i. e. to spiritual affairs to the judgment of secular men but that whosoever according to the Episcopal Laws shall for what cause or fault soever be summoned shall come to a place which the Bishop shall chuse and name for this purpose and there make answer concerning his cause and do right to God and his Bishop not according to the Hundred but according to the Canons and Episcopal Laws For in the time of the Saxon Empire there were wont to be present at those Country Meetings the Hundred Courts an Alderman and a Bishop the one for Spirituals the other for Temporals as appears by King Edgar's Laws CHAP. V. William Rufus succeeds Annats now paid to the King Why claimed by the Pope No one to go out of the Land without leave Hunting of Deer made Felony AFter the death of William his second Son WILLIAM sirnamed RVFVS succeeded in his room All Justice of Laws as Florentius of Worcester tells us was now husht in silence and Causes being put under a Vacation without hearing money alone bore sway among the great ones Ipsaque majestas auro corrupta jacebat that is And Majesty it self being brib'd with gold Lay as a prostitute expos'd to th' hold 15. The right or duty of First-Fruits or as they are commonly called the Annats which our Kings claimed from vacant Abbies and Bishopricks Polydor Virgil will have to have had its first original from Rufus Now the Popes of Rome laid claim to them anciently a sort of Tribute which upon what right it was grounded the Council of Basil will inform us and by what opinion and resolution of Divines and Lawyers confirmed Francis Duarenus in his Sacred Offices of the Church will instruct us 'T is certain that Chronologers make mention that at his death the Bishopricks of Canterbury Winchester and Salisbury and twelve Monasteries beside being without Prelates and Abbots paid in their Revenues to the Exchequer 16. He forbad by publick Edict or Proclamation sayes the same Author that any one should go out of England without his leave and Passport We read that he forbad Anselm the Arch-Bishop that he should not go to wait upon Pope Vrban but that he comprehended all Subjects whatsoever in this his Royal order I confess I have not met with any where in my reading but in Polydor. 17. He did so severely forbid hunting of Deer saith William of Malmesbury that it was Felony and a hanging matter to have taken a Stag or Buck. CHAP. VI. Henry the First why called Beauclerk His Letters of Repeal An Order for the Relief of Lands What a Hereot was Of the Marriage of the Kings Homagers Daughter c. Of an Orphans Marriage Of the Widows Dowry Of other Homagers the like Coynage-money remitted Of the disposal of Estates The Goods of those that dye Intestate now and long since in the Churches Jurisdiction as also the business of Wills Of Forfeitures Of Misdemeanors Of Forests Of the Fee de Hanberk King Edward's Law restored WIlliam who had by direful Fates been shewn to the World was followed by his Brother Henry who for his singular Learning which was to him instead of a Royal Name was called Beau-clerk He took care of the Common-wealth by amending and making good what had slipt far aside from the bounds of Justice and by softning with wholsome remedies those new unheard of and most grievous injuries which Ralph afterwards Bishop of Durham being Lord Chief Justice of the whole Kingdom plagued the people with He sends Letters of Repeal to the High Sheriffs to the intent that the Citizens and people might enjoy their liberty and free rights again See here a Copy of them as they are set down in Matthew Paris HENRY by the Grace of God King of England to Hugh of Bockland High Sheriff and to all his Liege people as well French as English in Herefordshire Greeting Know ye that I through the mercy of God and by the common advice of the Barons of the Kingdom of England have been crowned King And because the Kingdom was opprest with unjust exactions I out of regard to God and that love which I bear towards you all do make the holy Church of God free so that I will neither sell it nor will I put it to farm nor upon the death of Arch-Bishop or Bishop or Abbot will I take any thing of the domain of the Church or of the men thereof till a Successor enter upon it And all evil Customs wherewith the Kingdom of England was unjustly oppressed I do henceforward take away which evil usages I do here in part set down 18. If any one of my Barons Counts or others that hold of me shall dye his Heir shall not redeem his Land
as he was wont to do in the time of my Father but relieve it with a lawful and due relief In like manner also shall the Homagers or Tenants of my Barons relieve their Lands from their Lords with a lawful and just relief It appears that in the times of the Saxons a Hereot was paid to the Lord at a Tenants death upon the account of provision for War for here in Saxon signifies an Army and that which in our memory now in French is called a Relief Henry of Bracton sayes 't is an engagement to recognize the Lord doth bear a resemblance of the ancient Hereot Thereupon it is a guess saith William Lambard that the Normans being Conquerors did remit the Hereot to the Angles whom they had conquered and stripped of all kind of Armour and that for it they exacted money of the poor wretches To this agrees that which is mentioned in the State of England concerning the Nobles of Berkshire A Tain or Knight of the Kings holding of him did at his death for a Relief part with all his Arms to the King and one Horse with a Saddle and another without a Saddle And if he had Hounds or Hawks they were presented to the King that if he pleased he might take them And in an ancient Sanction of Conrade the First Emperour of Germany If a Souldier that is Tenant or Lessee happen to dye let his Heir have the Fee so that he observe the use of the greater Vavasors in giving his Horses and Arms to the Seniors or Lords John Mariana takes notice that the word Seniors in the Vular Languages Spanish Italian and French signifies Lords and that to have been in use from the time of Charlemain's Reign But these things you may have in more plenty from the Feudists those who write concerning Tenures 19. If any of my Barons or other men Homagers or Tenants of mine I return to King Henry's Charter shall have a mind to give his Daughter or Sister or Niece or Kinswoman in marriage let him speak with me about it But neither will I take any thing of his for this leave and licence nor will I hinder him from betrothing her except he shall have a design of giving her to an enemy of mine 20. If upon the death of a Baron or any other Homager of mine there be left a Daughter that is an Heiress I will bestow her with the advice of my Barons together with her Land 21. If upon the death of the Husband his Wife be left without Children she shall have her Dowry and right of Marriage as long as she shall keep her body according to Law and I will not bestow her but according to her own liking And if there be Children either the Wife or some one else near of kin shall be their Guardian and Trustee of their Land who ought to be just 22. I give order that my Homagers do in like manner regulate themselves towards the Sons and Daughters and Wives of their Homagers 23. The common Duty of Money or Coinage which was taken through all Cities and Counties which was not in the time of King Edward I do utterly forbid that henceforward this be no more done 24. If any one of my Barons or Homagers shall be sick and weak according as he himself shall give or order any one to give his money I grant it so to be given but if he himself being prevented either by Arms or by Sickness hath neither given his money nor disposed of it to give then let his Wife or Children or Parents and his lawful Homagers for his souls health divide it as to them shall seem best And in Canutus his Laws Let the Lord or Owner at his own discretion make a just distribution of what he hath to his Wife and Children and the next of kin But at this time and long since Church-men have been as it were the Distributors and Awarders of the Goods of such persons as dye Intestate or without making their Wills and every Bishop as Ordinary in his own Diocess is the chief Judge in these cases John Stratford Arch-Bishop of Canterbury saith it and it is averred in the Records of our Law that this Jurisdiction also concerning Wills was of old long time ago in an ancient Constitution intrusted to the Church by the consent of the King and Peers However in what Kings time this was done neither does he relate nor do I any where find as William Lindwood in his Provincial acknowledgeth It is a thing very well known that after Tryal of right Wills were wont to be opened in the Ecclesiastical Court even in the Reign of Henry the Second Ralph Glanvill is my witness contrary to what order was taken in the Imperial Decrees of the Romans And peradventure it will appear so to have been before Glanvill as he will tell you if you go to him although you have quoted by my self some where a Royal Rescript or Order to a High Sheriff That he do justly and without delay cause to stand i. e. appoint and confirm a reasonable share to such an one that is that the Legatee may obtain and enjoy his right what was bequested to him by the Sheriffs help I come back now to my track again 25. If any one of my Barons or Homagers shall make a forfeit he shall not give a pawn in the scarcity of his money as he did in the time of my Brother or my Father but according to the quality of his forfeiture nor shall he make amends as he would have done heretofore in my Brothers or Fathers time 26. If he shall be convicted of perfidiousness or of foul misdemeanors as his fault shall be so let him make amends 27. The Forests by the common advice of my Barons I have kept in mine own hand in the same manner as my Father had them 28. To those Souldiers or Knights who hold and maintain their Lands by Coats of Male that is per fee de Hauberke that they may be ready to attend their Lords with Habergeons or Coats of Male compleatly armed Cap a pee I grant the Plough-lands of their Domainsacquitted from all Gelds and from every proper Gift of mine that as they are eased from so great a Charge and Grievance so they may furnish themselves well with Horse and Arms that they may be fit and ready for my service and for the defence of my Realm 29. I restore unto you the Law of King Edward with other amendments wherewith my Father amended it Those amendments are put forth by Lambard Hitherto out of those Royal and general Letters directed to all the Subjects CHAP. VII His order for restraint of his Courtiers What the punishment of Theft Coyners to lose their Hands and Privy-members Guelding a kind of death What Half-pence and Farthings to pass The right measure of the Eln. The Kings price set for provisions 30. HE did by his Edict or Proclamation restrain
thus words it quibus sors tantum contulit extra domos in pascuis ut triginta argenteorum pretium excederet who had an Estate besides Houses in Lands which might exceed the value of thirty silver pence Lin. 15. Out of a Rescript of Pope Gregory We have the whole Letter set down in Spelman which speaks in English thus GREGORY the Bishop Servant of the Servants of God to his Worshipful Brethren the Arch-Bishops of Canterbury and York and to their Suffragans and to his beloved Sons the Abbots Priors Arch-Deacons and their Officials appointed throughout the Kingdom of England unto whom these Letters shall come Greeting and Apostolical Benediction In what manner the Pence of S. Peter which are due or owing to our Chamber are to be gathered in England and in what Bishopricks and Dioceses they are owing that there may arise no doubt on this occasion we have caused it to be set down in this present Writing according as it is contained in the Register of the Apostolick See Out of the Diocess of Canterbury seven pounds and eighteen shillings sterling Out of the Diocess of London sixteen pounds ten shillings And so of the rest Yeoven at the old City April 22. in the second year of our Popedom There is some difference though in the account of the Dioceses For after Lincoln he leaves out Coventry and puts Chichester for Chester 8 l. and then after Bath he puts in Salisbury and Coventry with a mistake 10 l. 10 s. for 5 s. and leaves York last Besides every body knows there are more Dioceses now than were then This was Gregory the Fifth that wrote this and it was our Author tells us in the time of King Edward the Second But Edward the Third in the year of the Lord 1365. and of his Reign 39. forbad these Peter-pence to be paid any more at Rome or to be gathered any longer in England CHAP. XV. Pag. 81. lin 10. Into six Provinces or Circuits As they are for number still with two Judges a piece though at first three How these differ from what they now are as to the Counties the Reader may easily satisfie himself Here are thirty seven of them as we now reckon only with this difference that Monmouth and Rutland are left out and Richmond and Copland are put in Pag. 82. lin 27. And if he perish i. e. sink let him lose one foot For that in this tryal by water was the sign and proof of guilt if the party thrown in did not swim which is quite contrary in the tryal of Witches as you will find in the next Chapter which treats of Ordeals Lin. 39. The Kings great Assise Assise is a word that hath many significations in our Law It is here in the Title taken for a Statute The Assises i. e. the Statutes and Ordinances of King Henry made at Clarendon But in this place it is used for a Jury and it is either the Great or Grand Assise which serv'd for the right of Property and was to consist of twelve Knights or the Petty Assise which served for the right of Possession only and was made up of twelve lawful men CHAP. XVI Pag. 86. lin 34. The superstitions and fopperies These you have also in Sir H. Spelman with an Incipit Missa Judicii which shews that the Church of Rome did once approve of these Customs which since she hath condemned notwithstanding her pretence of being Infallible I would to God she would deal as ingenuously in throwing off those other errors and corruptions we do so justly charge her with CHAP. XVII Pag. 87. lin 21. Hogenhine Or Agen-hyne that is ones own servant It is written also Home-hyne that is a servant of the house Lin. 33. Holding in Frank Pledge The Latin is francus tenens Wherefore amend the mistake and read holding in Frank Fee For Frank Pledg is a thing of another nature as belonging to a mans Behaviour and not to his Tenure Now Frank Fee is that which is free from all service when a man holds an Estate at the Common Law to himself and his heirs and not by such service as is required in ancient demesne Pag. 88. lin 12. The Falcidian Law So named from one Falcidius who being Tribune of the people in Augustus his time was the Maker of this Law Lin. 33. Twenty pounds worth of Land in yearly revenue So I render 20. libratae terrae For although Cowell in proportion to Quadrantata or Fardingdeal of Land which he saith is the fourth part of an Acre seems at first to gather that Obolata then must be half an Acre Denariata a whole Acre and by consequence Solidata twelve Acres and Librata twenty times twelve that is two hundred and forty Acres Yet this was but a conceit of his own For by having found the word used with reference to Rent as well as Land thus 20. libratas terrae vel reditûs he is forced to acknowledge that it must signifie so much Land as may yield twenty shillings per annum To which opinion Spelman also gives his assent But what quantity of Land this Librata terrae is cannot so easily be determined Cowell out of Skene tells us it contains four Oxgangs and every Oxgang thirteen Acres if so then it is fifty two Acres and twenty of them which make a Knights fee come to one thousand and forty Acres which somewhat exceeds the account here set down of six hundred and eighty out of the Red Book of the Exchequer But there is a great deal of more difference still as the account of the Knights fée is given by others In one Manuscript we read that A Yardland contains twenty four Acres four Yard-lands make one Hide that is ninety six Acres and five Hides make a Knights fee that is four hundred and eighty Acres the Relief whereof is a hundred Shillings Another Manuscript hath it thus Ten Acres according to ancient custom make one Fardel and four Fardels that is forty Acres make a Yardland and four Yardlands that is one hundred and sixty Acres make one Hide and four Hides that is six hundred and forty Acres make one Knights fee. A third reckons it otherwise that sixteen Yard-lands make a whole Knights fee which if we make a Yard-land to be twenty four Acres according to the first account comes to three hundred eighty four Acres but if according to the second we take it for forty Acres it amounts to six hundred and forty Acres And saith he when they are taxed at six Shillings four Pence that is every of the sixteen Yard-lands which make up the Fee at so much they make the summ of one hundred Shillings or five Pound which was the ancient Relief of a Knights fee. But this is a mistake either of the Author or the Citation it is six Shillings three Pence which makes that just summ from whence we learn also what proportion was observed by the Lord in setting and demanding of the Relief upon the next
Heir after his Ancestor's decease Further in the Kings Writ as Glanvil cites it it is said that twelve plough-Plough-lands make one Knights fee which allowing to a Plough-land one hundred twenty Acres amounts to one thousand four hundred and forty Acres In the main as to the value of a Knights fee 't is enough what Cowell tells us that it was so much inheritance as was sufficient yearly to maintain a Knight with convenient Revenue which in Henry the Thirds dayes Camden sayes was fifteen Pounds and Sir Thomas Smith rates at forty But to confirm the account which our Author here gives us we find in the Statute for Knights in the first of Edward the Second that such as had twenty Pounds in Fee or for term of life per annum might be compelled to be Knights And as to the various measure of Land of which we have had a remarkable instance in this business before us Spelman hath given us good reasons for it since where the Land was good they might probably reckon the fewer Acres to a Yard-land a Hide a Knights fee c. and where it was barren they might allow the more Beside that some Lords who lett these Fees might be more bountiful and profuse others more parsimonious and severe to their dependents and that the services which were imposed upon these Fees might in some Mannors according to custom be lighter in others upon agreement and covenant more heavy All which might strangely diversifie the account as to the quantity or measure of those Lands which were to make up a Knights fee. CHAP. XVIII Pag. 91. lin 4. A little Habergeon or Coat of Mail. In Latin Halbergellum a diminutive from the Saxon Halsberg armour for the Neck and Breast It is written also Haubergellum and Hambergellum They mistake themselves who translate it a Halbert in French Halebarde anoffensive Weapon for a Coat of Mail which is armour of defence in French Haubert or Hauberk whence Fée de Hauberk which we have already explained somewhere before Lin. 5. A Capelet of Iron A little Iron or Steel Cap instead of a Head-piece or Helmet which the better sort wore For by comparing this with the two fore-going Sections we find they were to have a difference of Arms according to their different Quality and Estate Lin. 7. A Wambais Wambasium or Wambasia so called I suppose because it reached over the belly or womb was a Jacket or Coat of defence used in stead of the Coat of Mail perhaps like unto our Buff-coats though probably not of Leather only but of any other material as the Wearer should think fit Pag. 92. lin 6. Timber for the building of Ships In Latin here Mairemia written also Meremia and Meremium and Maremium and Muremium from the French Meresme Timber to build with Lin. 14. Stercutius Saturn so called as being the first Inventer of dunging Land Lin. 28. Vnder the title of Free-men Here the Author himself hath in the Latin added a Marginal Note which I thought fit to remove to this place He saith that among the ancient Germans the Alway free the Middlemost free and the Lowermost free were as it were the Classes and several Ranks of the lesser Nobles i. e. of their Gentry For the title of Nobless as also in our Vulgar Language was given only to Princes and Great Men. And for this he quotes Munster Cosmog lib. 3. CHAP. XIX Pag. 93. l. 32. In the borders of the Carnutes A people of France whose Countrey is called Chartrain and their chief City Chartres about eighteen Leagues from Paris Eastward That Town eight Miles off called Dreux in Latin Drocum was so named from the Druids who dwelt there at first and likely enough afterward often resorted thither P. 94. l. 37. Of the three Estates the King the Lords and the Commons There are indeed three Orders or Estates acknowledged by true Divines and sound Lawyers in the English Government to wit the Lords Spiritual the Lords Temporal and the Commons of England But the fundamental mistake of our Learned Author is that he hath joyned those two sorts of Lords whose very character shews them to be of a distinct species though as to the publick Welfare and the Kings Service they ought to be of one and the same interest into one Estate and to make up the third Estate thought himself obliged to bring in the King himself for one who is Lord paramount over all the three and by this means ipsam Majestatem in ordinem redigere I call this a fundamental mistake as a most probable ground of Rebellion as it was in the Barons Wars and in our late Civil Broils inasmuch as if the King make one of the three Estates as they fancy he doth and hath as they do from thence conclude he hath no more but a co-ordinate power with both or either of the other two Estates that then it is lawful for both or either of those Estates in case of publick grievances to quarrel the King their co-ordinate if he will not give way to their redress that is if he will not consent to do what they would have him to do and upon his refusal of so doing to raise War against him to sequester and murder his Loyal adherents to destroy his Royal Person and finally if he escape the hazards of Battel when they get him into their hands to bring him to account for a pretended male administration and the violation of a trust which God and not the People put into his hands and having gone so far that they may if possible secure themselves to put the Monarch to death and to extirpate Monarchy it self This was the ground and method of our late Republican policy and practice Wherein yet they did not foresee what examples they set against themselves supposing this Doctrine of the three Estates in their sense to be true and that King Lords and Commons had an equality of trust and parity of power that the same outrage which the Rump-Commoners acted against the King to the destroying of him and against the Lords to the outing of them and voting them useless and dangerous as to their share of Government might one time or other be more plausibly promoted and more effectually put in execution by one or both of the other two Estates with the help and assistance of great numbers of the Commoners as there ever will be in such National divisions against themselves and all men whatever of such pernicious and destructive principles No. This false Doctrine I hope will never obtain among us and our English Government is so well constituted that our Lords Spiritual and Temporal and our worthy Commoners will find it the interest of themselves and their posterities that they will ever have that duty and deference to our Soveraign as may secure Him and Us and discourage the designs and defeat the attempts of all such as wish ill to his honour and safety or to the publick peace