before William the first that he sided not against him and that being found true he and all those in his condition h Weentun Monum hiâ— example â—n Câ—â—ington of Sir Rob. Cotten like to lose all were confirmed in their Lands and Lordships to have and hold those are the words of the confirmation as wholly and peaceably as ever they did before the conquest By the Records of Term. Trin. 21 E. 3. Comit. Ebor Com. Northumb Rot. 191. This Drench is described thus That the foresaid Vghtred held the said lands viz. In Northumberland of our Lord the king and of his progenitors kings of England by the service of a Drench which service in the parts foresaid is such that of whomsoever he holds any thing there by such service it is held and if the Tenant dye his heire being within age the Wardship of the heir and land belongeth to the Lord of which c i D. Spelm. gloss verbâ— Dronches with the marriage Whether wardship and marriage as the Lord Cook k 4. Inst 193. no badges of servitude be of the same antiquity with king Aelfred I will not take upon me to determine the Lord Cook as also the Mirrour in the place cited by him are for the affirmative l Inst 1. p. 76.4 Inst 292. mire sect 3. graft 911. c. By a law if any man dye intestate the Lord is to have nothing but what is due by the name of Hereoâ— m Ll. Cnuâ—â— c. 68. by Mr. Lambard this is acknowledged Engish-Saxon and thought to be the same with relief one place sayes Relief or rather Herent n Not. in radwes 152 and Hereot or relief o 154. 161 id compares the Hereota to the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Hereor is a service and acknowledgement of the seigniory of another a tribute so Dr. Cowel given to the Lord amongst the Saxons for his better preparation toward the war In the Monastical institutions of king Edgar Hereot is called geÆ¿unlic gae ul a customary Cens or duty said to be given to the kings by the great men of this Country after geþtenege their death It is forbidden by this king to be given for all Abbots and Abbesses p In not ad eadm before as it seemeth not so free as here the words By the great men after their death make it quite another thing though it is called so from relief which is for the heir and never paid but where there is one q Gloss verbo Hereot The Hereot was to be reasonable and here again we shall see the ranks of the Saxon noblesse The Earls eight horses four sadled four not four Helmets four coats of maile and eight spears as many shields four swords and two hundred * Saxon â— Marks of Gold The greater Thanes the kings Thanes four horses two sadled two not two swords four spears as many shields an helmet a coat of maile and fifty marks of Gold The Medmere or under Thane one horse ready his weapon or as amongst the West Saxons his neck ransome amongst the Mercians two pounds amongst the Easâ—-Angels two pounds The Kings Thanes Hereot amongst the Danes who has free jurisdiction ðe his socne haebâ—e foure pound and if he be further knowne to the King two Horses one sadled the other not one Sword two Speares two Shields and fifty markes of gold The conclusion has not Infimae conditionis Thani as the Latin is But he that has lesse and lesse may be he two pound r Ll Conti. c 69. other Lords had their Hereot too The Lawes of Kings William which as the title were the same which King Edward obserued calles this which in these Lawes is Hereot reliefe and the Earle Kings Thegne and Underthane who are here charged as is said there are called and named Cnute Barun and Vavasour and charged much in the same manner Å¿ â— 22 23 24 v. c. 20. with little difference King Edwards Latin Lawes where any man falls in warre before his Lord by Land or else where forgives his reliefe t c. 3â— and gives his Heires his Lands and Money without diminution u ibid. I will observe a little out of those old grants and Charters which preceed the Normans by which the religious heretofore made their titles onely carefull to get and to be free where we shall finde other men were not so The confirmation of Pope Agatho of the new raised Monastery of Medeshamstede after Peterborough before the age of Charters w An. 680. Concil Sax. 164. recites the immunities It was to be in no ðeudom in no kinde of servitude neither to King Bishop nor Earle No man was to have any rent or tribute there in the Councel of Becanceld King Withered freed the Church from all difficulties of saecular servitude from feeding the King Princes Aldermen Earles from all works the greater and lesser grievances c. x Concil Becanceld Au. 694. Concil Sax. 190. Witlafe King of the Mercians in the yeare 833. confirmes to the Monastery of Crowland their Lands and Tenements thus I grant deliver and confirme those Lands and Tenements c. for a peaceable and perpetuall possession to have from me and my Heires whosoever Kings of the Mercians after me to succeed in puram Eleemosynam in perpetuall and pure frankalmoigne Libere quiete et solute or as we now use it quit and discharged from all saecular charges exactions and tributes whatsoever by what name soever y Ingulp hist Concil Sax. 328. as another place amongst many things done said Ceolnoth the Archbishop before the whole Councell of Kingston shewed That the aforesaid Kings Egbert and Aethelwulfe his Son gave to Christ-Church at Canterbury the Mannor called Mallings in South-saxon free from all secular seruice and tribute royal except these three expedition military fird or firdfare upon the Herebanne the proclamation or edict military and to repair Bridges Castles Brugbote and Burgbote z Concil 340. by some not to be released * Charta Eâ—dbaldi Mâ—lmsb de gest reg l. 1. Iâ—ae reg Glelienb Concit 228. which was not true The most learned Mr. Selden saies in England before the Normans were military fiefes the Earles and Thanes were bound to a kind of Knight service all the Lands of the Kingdom except some priviledged c. held of the Crown mediatly or immediately but saies he the expedition mulitary c. those three were not so much by reason of tenure as general subjection to occasions of the state a Tit. Hon. 1 Edit 321. likely so yet to recite the opinions of others there are that thinke this firdfare to be the same with our escuage the Charter of Kenulph An. 821. the Mercian King to Abingdon discharges all services but the expedition of twelue men with their shields cum scutis burgbote c. as the most knowing Knight In the antient Charters
all laws whatsoever unlesse there could be a stay of mens manners unlesse they could move in an orderly course either continually running upon things forbidden or avoiding them either constant to their own goodnesse or their lawlesse sins there must be new Laws to amend what is amisse unlesse Prophesie may be presupposed in the first Lawgiver who w th cast of his eye w th one look can see every thing Thus we have seen whatour laws are from what fountain they flow so then their discontent who onely hate the sword and by whom the laws are loathed in no other notion but that of Norman conquest must be removed they being not onely demonstrated to be justly made and according to the law of Nations weighed and allowed not by the wisdome of a narrow age but imbelished and polished by the experience and wisdom of a thousand yeers the fundamentals being yet of an higher rise and what is most of all Saxon-English must needs be venerable they will be so with those who are won by reason and with those who are not capable of that yet will be taken with the name if their obstinacy be not above their senses But if the law be not Norman Tenures if it suffer that which is some will say it is the same whether the Wen be native born with the face or ad nate growing upon it after the deformity is alike And the next guilt charged upon the Iaw is the vassallage of feudes or Tenures being a servitude thought unworthy of free men it may easily be shown that those were not first shown us by the Normans that they had made their entrance long before and if this be culpable scarce any laws but none of those of the Germane fountain from which the most of these as is proved in the western world are derived are innocent I will not look so far back as upon Surena among the Parthians whose hereditary right it was and might be like our grand serieauty to put the royal bond or Cydaris as it is called by the Persians k Curt. l. 111 upon the Kings head l Plut. in Crasso Not upon the souldiery amongst the Gauls heads devoted to him and his fortune whom they followed the Gessel amongst the Gauls and Germans m Caes com l. 3. Not upon Nero his kissing the Armenian Tyridates kneeling which might be thought homage n Sueton. iu in Ner. Nor upon Alexanders kisse taken by Mr Fulbeck o Paral. 4. Dial. for the same Calisthenes is refused this kisse given by the king to every of his friends at supper with him after they had drank of whose fee we read nothing in History and his Philosophy would make it seem small one Budaeus would have seuds first begin in the antient Clienteles of the Romanes and in the relation between the Patricii the Nobility and the Plebeians or Commons the tye betwixt whom was reciprocal the Patron was bound to protect the Clyent and he with all faithfulnesse to observe the Patron to attend him in publike assemblies to contribute to the marriage of his daughters to the payment of his publike mulcts c. Yet was there another relation and that was servile betwixt the Patron and freed man appearing by the operae libertorum the duties and day works of the freed man to be done to the Patron whom he was obliged if he were an official freed man to serve and help in all things the artist paid a certain sum of mony either might be reduced to his servitude if he were ingrateful part of his goods at his death were due to his Patron There were the fundi Limitrophi the border grounds of the Romans belonging to the souldieâ—s marchers upon the guard for defence of the borders And Alexander S. verus is reported to have given the Lands of his enemies won by him to his Praefects of the marches and to their souldiers and to their heirs p Lamprid. in Alex. Sen Constantine the great appropriated the Lands assigned for the pay of the souldiers to them and their heirs with this charge to maintain continually a certain number of souldiers which came to a neer resemblance Gregory Haloander q In praes Noves saies the customes of the feuds were called by the ancients jura militiarum by Justinian in the novelles 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Those who hold feuds by Aescuage are called by him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 shield bearers The 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the novelles is more then our livery The chief Lord the first yeer the heir or successour of the Vassal came to the Land was to have the whole revenue of it or a certain sum of mony in token of the return to the Lord and redemption There was the glebal goldein in the Code so called because the Senators paid it to the Prince for their possessions There was too as Zâ—zamene The glebal adscriptitius 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the villain who continued was aliened with and followed the field Germanie as the most knowing knight r Gless D. Spelm. scudum brought forth the rights and customes feudal and propagated them by tradition not writing their beginning is rather to be referred to the Salian Franks says the most learned Mr. Selden then to the Lomberds Feud is a reward or stipend It is a right in anothers land to the use and profits which the Lord gives for a benefice on condition That the receiver do fealty military duties and other service By which as in our Copy holds the Franktenement was in the Lord still Necessity of war begot the invention Emperours Kings and Princes to reward those who had fought valiantly for their new Conquests and to plant a perpetual souldiery prepared ever ready upon the Ban to get to horse or march bred up to armes as to a profession to the intent the Country might be preserved against invasions and tumults without the Princes or the publike charge mischiefs sometimes breaking in so suddainly that the slownesse of any other preparation where levies of men and monies require time cannot be staid for Countries were given to the Capt. who after made subdivisions to their souldiers the Captains part being proportioned according to the number of those under him all being still incorporate a civil unseen militia not ever shriking the eyes of others quietly mixing and keeping course in the common streame like Traianes Cohorts differing nothing in habit P. in Paneg. tranquillity and modesty from others but at the first summons of the foot ready like the seed of Cadmus to start up fields of armed men The Justice of the institution was as much as the policy all these tenures have been created according to this rule as the Lord Gooke s 4. Jnsti 192. Cuius est dare eius est disponere every proprietary may annex his condition to his grant and dispose as he pleases of his owne nor has the Vassall any reason to
of Geolph sonne of Malt in Halington four Oxganges of land of Jnland which the Margent once corrects by Luland for Juland both which make it non-sense there is added and ten Oxganges in service The words Mannor Mansions Teuements Marshes common of Pasture of all Beasts are frequently met with in the antient Grants made by the Mercian and West Saxon Kings to the Monastery of Crowland f Inulphus Savil 859 864 881. with the termes acres hides Carues Oxeganges Yardlands Firmes Rents c. many of those Mannours had their Royalties or huge Priviledges as Ingulphus calls them annexed both of Jurisdiction in some parts lessened since and profit King Edgars Chatter this Monastery describes and grants them I grant and confirme sayes he c. free from all secular charge and that they have all the free Customes with all that which is called Soc Sac Tol and Team Infangthef Weife and Streye g Id. 881. amongst which Sac in the Halmot since Court Baron was common to all Mannors In the great Plea of Pennedene of which before the Archbishop is said to darrein all the Liberties and Customes of his Church Soca Saca Tol Team Flymena Fyrmthe for Flymen firm Grithbrice Forsteal Haunfare for Heinfare and Infangennetheof h Not. in Ead. 196. most of which are now worne out unknowne in these base Courts yet I will say something of them not that I pretend to give full satisfaction being in some of them unsatisfied my selfe as they are upon whom I relye for Soca D. Cowell cites S. Edwards Lawes i c. 23. He sayes some will have it an Inquest as if it were seek some Suit of Court others an exemption of the Tenents from any publike duties without the Mannor or Liberty called still soke soon socne is in Saxon liberty * Ll. Cnuti c. 69 4. free Jurisdiction frithsocne is a sanctuary a liberty of peace k Ll. Eccles r. Cnuti c. 2 In the lives of the Abbots of S. Alhanes we read with all the lands which William Chamberlaine or the Chamberlain held in the Soke of Luiton l 69. it is the Liberty or Jurisdiction of the Lordship within which the Lord may hold his Court to which the Tenants ought to resort to doe their Suit and out of which they are not to be drawne Sac is conusance of Pleas Tol is said to be a liberty to buy and sell within the Mannour m Ll. Edu c. 24. more likely some duty paid to the Lord upon such sales Team in other Saxon out of the Lawes is progenie by some made a power to have and and dispose of villains and their race it is so I gather from the Saxon laws cognizance in a Court-Baron of things claimed stollen where he in whose hands the goods were found might vouch his Vendor and he over till the Thiefe was discovered if hee were teames ƿyrþe as King Cnuts Lawes speak if he deserved the right as having bought before legall witnesses otherwise not and he was to pay the penalty imposed at the third Voucher the Owner is to have his goods the team was to be in the place where the goods were found no man was bound fylgean team to follow it I know not whether timþ is used in the Laws of Ine for vouch getiman in those of Aelfred for the Voucher as geteaman in those of King Edward the elder and King Aetheldred timan and teaman to vouch team for vouching tymoe he hath vouched in Aethelstanes Lawes tyman team in those of Aetheldred team teames tyme in Cnuts in the same sense n Ll Ina l. 74. Alfr. 4. Edv. sen 2. Aethelft 24 Aetheld 9 10. Cnuti 21 22. Edv 3.25 the other terms may be rendred by Mulct of sustaining Fugitives or Out-lawes of breach of the peace forestalling departing of a Servant Tryall of a Thiefe taken within the Jurisdiction There were Parks in the Saxon times which though it be a digression I thought fit to observe this appears by the word Deorfald Deerfold and by the Doomesday where they are are called Parcisylvatici bestiarum Wood Parks of Beasts Forrests too here are as antient called Bucholt and Buchurst is the same holt and hurst both signifying a Wood. King Cnut in his Lawes o c. 77. v. manne Ferest D Sp. gloss verb. Forresta gives any man leave to hunt in his owne Woods or Fields forbidding onely to meddle with the Kings Venison in the places of freedom other Forrest lawes were after set forth by the same Cnut one of which in the thirty chap. gives leave to hunt but not so generaly it names not woods If the Saxon original were as narrow which no man now knowes yet I see not why these laws should be suspected for it as they are p 4. Inst where this chapter is thought to be a prohibition to hunt which it is not It agrees with the law before men were to avoid the kings game not wheresoever according to the word but wheresoever he will have it according to the other law gefƿiþod priviledged free What the Thane was and how he held his Lands and Lordships I will next enquire The word Thane Thegen thein thegne we finde theowan too and all these ways it is written is used sometimes indifferently in some places meerly for the kings servants meerly for a servant as in Doomesday Cola the bunter Vluiet the hunter Godwin the Falconer c. and in a Saxon Sermon q In Beda 〈…〉 382 The Queen of Seba tells Soloman blessed are thy servants theguas and theowan the Apostles are called thenes r Bede 483. yet in other places it may be observed directly and properly restrained to intended of a Thane holding Taine Land though he might in some honourable way or other serve the king too Such might he be in Bede whom as the fable speaks no bonds could hold when his brother was at Masse praying for his soule as supposing him slain in the battel with Elwin king Egfreds brother who feared to confesse that he was the kings Thegne but said he was a folelic man and again those that were with him saw by his face and carriage that he was not one of the poor folk but that he was of noble race ſ Bede l. 4. c. 22. and being questioned answered he was the Kings Thegne There is the Kings Thane the ðeoden mean or under Thane The first the Kings Baron the other the Lord of a Mannor t v. ll reg Cnuti c. 69. as a most learned Antiquary Neither were there with them the Saxons any other created titles after the Prince or Etheling honorary it seems but this of Earle and their Thanes according to the Charter of the Confessor for the Lands of St. Pauls Church there which runs thus Edward king Gret mine Bisceops and mine Forles and alle mine Thegnes ou Thau shiren wher mine Prestes in Paulus Minister habband Land u D. Seld. tit Hon. He acknowledges there were
complaine volenti non sit injuria he might have refused the thing his acceptance binds him to the charge coincident Hotoman describes a fief to be a benefice for which some duties are done to testifie the gratefulnes of the taker t Disp c. 1. I should think here would be the injustice That the whole benefice should be enjoyed by the Tenant and the Granter from whom it moved be allowed none of his owne reservations to himselfe I beleeve there are few men now without harths or housholds Gods who would resufe a good manner because these tyes hang upon the Labell Sir Themas Ridleyn a Civilian fetches the Feudes chiefly from the Lombards u View c. 71. much augmented and adorned by them they might be w Gloss D. sp 256. which Lombards were Cousin-Germanes of the English Saxons whose Companions in the Conquest of Italy part of the Saxons were and their charges are almost the same with ours yet in the volume of the antient Lombard Lawes the word feud is not to be found seldome the word benefice but their are many things directly tending to this purpose as also in the Laws of the Franks called the Capitulars our English Saxon those of others The word feud is of Saxon originall feb fech from whence it comes being the same with fee in use now The greatest part of the words taste not onely of the Germane but of it 's more ancient dialect the old Saxon. x D. spelm ibid. The feuds came but of late to be a volume of the Civill Law composed by Obert de Horto and Gerard Niger under the Emperour Fredericke the first surnamed Barbarossa antiently the fee was held meerly at the will of the Lord y Ger. nig l. 1. T. c. 1. after for a yeare for life made perpetuall and hereditary by Conrad the salic the yeare 1025. amongst the Germans where the discent was as we call it by Gavelkinde amongst the French in the reign of Hugh Capet which he began in the yeare 988. in the yeare 913. as Munster will have it Conrad the first changed this custome he gave the Dukedome of Saxonie to Henry the Faulconer as a fief hereditary to the end these are his words that he might be the more vigilant to combate the Obotrites now those of the Dukedome of Mecklenburge and the enemies of the Faith After as he Otho the first who began his reign 938. and his Successors did the like z Cosmegr 346. after his defeat of the Hongres a ibid. 359. Lothaire the Emperour forbad Lords to take away the Vassals fee without his crime which some interpret signall ingratitude b Feud l. c. tit 20.23 to which Conrade addes unlesse he be convinced of the crime by the judgement of his Peers or equals of the Court c ibid. which is called Landamentum It is said of the Germans the Emperour because he cannot judge causes in all places conferres upon illustrious men viz. Princes Earledomes and feudal banners d Specul Sax. Artic. 52. as another they have their fanleben or principall fees the collation and investiture of which belongeth onely to the Emperour e Stat. German p. 2.52 These were the fees of the great Captaines or Barons called by them freyberen under which are the Medii Liberi who followed the Warre and ought homage to another as Servitors noble f Munst 145. the Land they called Terra salica was the same with our Knight service g Bodin l. sixieme c. 5. this was simply called a fee military held of the Barons and Vavasours of all which the Iaws speak where are mentioned the great Captaines who received the regall fiefs called vassi dominici who held in chiefe the middle of a lower sort who received siefs from them and the lowest to whom those gave h Feud l. 1. tit 1. sec 4. Et tit 15. Frederick the first is made to speake thus We in the presence witnes of all the Teutonic's Lombards and of the Bishops and lay Princes and Barons and Vanasours c. i Raedenic l. 2. c. 31. There is a Gavelkind as well in their honours of the greatest Houses as of the Lands which held in the Crowne it selfe till Charlemaigne and is abolished in the House of Hessen but fince the last peace The words of the Lord Arundel of Wardours creation made Earle by Rodolph the 11. for his good service and valour against the Turkes at Strigoniun and the parts about were we have created him and all and every of his Children Heires and Posteritie and Descendents lawfully of both Sexes for ever to bee born Counts and Countesses c. The ancient Saxons were divided into three sorts the Edhilinges or Nobles the Frilinges or Freemen the Lazzi or Villeins which agreed exactly with our distinctions though now their remaines nothing of the latter but the memory of it with us not yet worne out a mongst the Germans and as to some duties as tilling the Lords ground carrying in his corne c. the complaint of the mutinous Clownes of the schwabische kraisse or circle of Suevia was true that their condition was little better then servile k Sleid. com l. 5. fiefs are every where in France upon the reasons before brought in as all their old Laws Institutions by Pharamond and his German Frankes the Conquerours of the Gaules The Nobles from the time of Hugh Capet tooke their surnames from their fiefs the French have their fief dominant en royale or tenure in capite held immediately in chiefe of the King and whereof many others hold their fief of Dignities either held immediately or of some fief so held then called fief mesne a Barony or Chastelleny the feudum vexillare or fief Rdnneret The fief ample or Knights fee held of the Lords Mesne Barons or Chastellaines and their fief roturior ignoble as our Socage Wardship Fealty Homage Courts Customes Iurisdiction over Vassals are incidents of the noble fiess a name as Berault which comprehends all the species but the last they have their Cotier paying the Cens a quit rent or tilling the Lords ground c. The Cens was a Custome of the Romans and imposed in imitation of them their Villain or basest servile Tenant is yet in being they have their Court feudale or fonciere which is as our Court Leet or Baron a Court of base Jurisdiction to which the Lords Vassals owe their suites and services so of Escheates there is little difference betwixt them us in them and in the right d'Aubaine where a Stranger possessed of Lands or Goods dies not naturalized The right of bannery is the same with us which is the priviledge of having a common Mill Oven c. whereto the tenants of the Maner must resort so of the dehris for wrecs or shipwrackes of right of warren fishing and fowling of Hereot a Custome of of the Germans yet of Reliefe of escuage