paying the rent accustomed shal owe to the Lord a certaine faith duetie trust obedience and as we terme it certaine seruice as libertus or cliens patrono which because it doeth not consist in the persons for the respect in them doeth not make them bond but in the lande and occupation thereof it is more properly expressed in calling the one tenaunt the other Lord of the fée than either libertus or cliens can doe the one or patronus the other for these wordes touche rather the persons and the office and duetie betwéene them than the possessions But in our case leauing the possession and lande all the obligation of seruitude and seruice is gone An other kinde of seruitude or bondage is vsed in Englande for the necessitie thereof which is called apprenticehoode But this is onely by couenaunt and for a time during the time it is vera seruitus For whatsoeuer the apprentice getteth of his owne labour or of his masters occupation or stocke he getteth to him whose apprentice he is he must not lie foorth of his masters doores he must not occupie any stocke of his owne nor mary without his masters licence and he must doe all seruile offices about the house and be obedient to all his masters commaundementes and shall suffer such correction as his master shall thinke méete and is at his masters cloathing and nourishing his master being bounde onely to this which I haue saide and to teache him his occupation and for that he serueth some for vij or viij yeres some ix or x. yeres as the masters and the friends of the young man shall thinke méete or can agrée altogether as Polidore hath noted quasi pro emptitio seruo neuerthelesse that neither was the cause of the name apprentice neither yet doeth the worde betoken that which Polydore supposeth but it is a Frenche worde and betokeneth a learner or scholer Apprendre in French is to learne and apprentise is as much to say in Frenche of which tongue we borowed this worde and many more other as discipulus in Latine likewise he to whom he is bound is not called his Lorde but his master as ye would say his teacher And the pactions agréed vpon be put in writing signed and sealed by the parties and registred for more assurance without being such an apprentice in London and seruing out such a seruitude in the same Citie for the number of yéeres agréed vpon by order of the Citie amongest them no man being neuer so much borne in London and of parentes londoners is admitted to be a Citizen or frée man of London the like is vsed in other great Cities of Englande Besides apprentises others be hired for wages and be called seruaunts or seruing men and women throughout the whole Realme which be not in such bondage as apprentises but serue for the time for daily ministrie as serui and ancillae did in the time of gentilitie and be for other matters in libertie as full frée men and women But all seruaunts labourers and others not maryed must serue by the yere and if he be in couenaunt he may not depart out of his seruice without his masters licence and he must give his master warning that he will depart one quarter of a yere before the terme of the yere expireth or else he shalbe compelled to serue out an other yere And if any young man vnmaried be without seruice he shalbe compelled to get him a master whom he must serue for that yere or else he shalbe punished with stockes and whipping as an idlè vagabond And if any man maried or vnmaried not hauing rent or liuing sufficient to maintaine himselfe doe liue so idely he is enquired of and sometime sent to the gaole sometime otherwise punished as a sturdie vagabond so much our policie doth abborre idlenesse This is one of the chiefe charges of the Iustices of peace in euerie Shire It is taken for vngentlenesse and dishonour and a shewe of enmitie if any gentleman doe take an other gentlemans seruaunt although his master hath put him away without some certificate from his master eyther by word or writing that he hath discharged him of his seruice That which is spoken of men seruaunts the same is also spoken of women seruaunts So that all youth that hath not sufficient reuenues to maintaine it selfe must néeds with vs serue and that after an order as I haue written Thus necessitie want of bondmen hath made men to vse fréemen as bondmen to all seruile seruices but yet more liberally and fréely and with a more equalitie and moderation than in time of gentilitie slaues and bondemen were woont to be vsed as I haue saide before This first and latter fashion of temporall seruitude and vpon paction is vsed in such countryes as haue left off the old accustomed maner of seruaunts slaues bondemen and bondwomen which was in vse before they had receiued the Christian faith Some after one â—ort and some either more or lesse rigorouslie according as the nature of the people is enclined or hath deuised amongest themselues for the necessitie of seruice Of the Court which is Spirituall or Ecclesiasticall and in the booke of Law Court Christian or Curia Christianitatis CHAP. 9. THe Archebishops and Bishops haue a certaine peculiar iurisdiction vnto them especially in foure maner of causes Testamentes and legations Tythes and mortuaries mariage and adulterie or fornication and also of such things as appertaine to orders amongest themselues and matters concerning religion For as it doeth appeare our auncestors hauing the common wealth before ordeined set in frame when they did agree to receiue the true and Christian religion that which was established before and concerned externe policie which their Apostles Doctors and Preachers did allowe they helde and kept still with that which they brought in of newe And those things in kéeping whereof they made conscience they committed to them to be ordered and gouerned as such things as of which they had no skill as to men in whom for the holinesse of their life and good conscience they had a great and sure confidence So those matters be ordered in their Courts and after the fashion and maner of the lawe ciuil or rather common by citation libel contestationem litis examination of witnesses priuilie by exceptions replications apart and in writing allegations matters by sentences giuen in writing by appellations from one to an other as well a grauamine as a sententia definitiua and so they haue other names as Proctor Aduocates Assessors Ordinaries and Commissaries c. farre from the manner of our order in the common lawe of Englande and from that fashion which I haue shewed you before Wherefore if I say the testament is false and forged I must sue in the spirituall lawe so also if I demaunde a legacie but if I sue the executor or administrator which is he in our lawe who is in the ciuill lawe baeres or bonoruÌ„ mobilium
baptisme did find so it did leaue them for it chaungeth not ciuill lawes nor compactes amongest men which be not contrarie to Gods lawes but rather maintaineth them by obedience Which séeing men of good conscience hauing that scruple whereof I wrote before haue by litle and litle found meanes to haue and obtaine the profit of seruitude and bondage which gentilitie did vse and is vsed to this day amongest Christians on the one part and Turkes and Gentils on the other part wheÌ„ warre is betwixt them vpon those whoÌ„ they take in battaile Turkes and Gentiles I call them which vsing not our lawe the one beléeueth in one God the other in many gods of whom they make Images For the lawe of Iewes is well ynough knowen at this day so farre as I can learne amongst all people Iewes be holden as it were in a common seruitude and haue no rule nor dominion as their own prophesies doe tell that they should not haue after that Christ was promised to them was of them refused for when they would not acknowledge him obstinatly for taking their helpe in soule for the life to come and honour in this worlde for the time present not taking the good tidinges newes and euangill brought to them for their disobedience by the great grace of God and by the promise of the Prophets â—ructified in vs which be Gentils and brought forth this humanitie gentlenes honour and godly knowledge which is seene at this present But to returne to the purpose This perswasioÌ„ I say of Christians not to make nor kéepe his brother in Christ seruile bond and vnderling for euer vnto him as a beast rather than as a man and the humanitie which the Christian religion doth teache hath engendered through Realmes not néere to Turkes and Barbarians a doubt a conscience and scruple to haue seruants and bondmen yet necessitie on both sides of the one to haue helpe on the other to haue seruice hath kept a figure or fashion thereof So that some would not haue bondmen but ascripticij glebae and villaines regardant to the ground to the intent their seruice might be furnished and that the countrie being euill vnwholsome and other wise barren should not be desolate Others afterwardes found out the wayes and meanes that not the men but the land should be bound and bring with it such bondage and seruice to him that occupieth it as to carie the Lordes dung vnto the fieldes to plough his ground at certaine daies sowe reape come to his Court sweare faith vnto him and in the ende to holde the lande but by copie of the Lords court rolle and at the will of the Lord. This tenure is called also in our lawe villaine bonde or seruile tenure yet to consider more déepely all lande euen that which is called most frée lande hath a bondage annexed vnto it not as naturally the lower ground must suffer and receiue the water and filth which falleth from the higher ground nor such as Iustinian speaketh of de seruitudinibus praediorum rusticorum vrbanorum but the lande doeth bring a certaine kind of seruitude to the prossessor For no man holdeth land simply frée in Englande but he or she that holdeth the Crowne of Englande all others holde their land in fée that is vpon a faith or trust and some seruice to be done to an other Lorde of a mannor as his superior and he againe of an higher Lorde till it come to the Prince him that holdeth the Crowne So that if a man die and it be found that he hath land which he holdeth but of whom no man can tell this is vnderstoode to be holden of the Crowne and in capitie which is much like to knights seruice and draweth vnto it thrée seruices homage ward and mariage That is he shall sweare to be his man and to be true vnto him of whom he holdeth the lande His sonne who holdeth the land after the death of his father shall be maried where it pleaseth the Lorde He that holdeth the lande most freely of a temporall man for franke almose and franke mariage hath an other cause and nature holdeth by fealtie onely which is he shal sweare to be true to the Lorde and doe such seruice as appertaineth for the land which he holdeth of the Lord. So that all frée lande in Englande is holden in fée or feodo which is asmuch to say as in fide or fiducia That is in trust and confidence that he shall be true to the Lorde of whom he holdeth it pay such rents doe such seruice and obserue such conditions as was annexed to the first donation Thus all sauing the Prince be not viri domini but rather fiduciary domini possessores This is a more likely interpretation than that which Litleton doeth put in his booke who saith that feodum idem est quod haereditas which it doeth betoken in no language This hapneth many times to them who be of great witte and learning yet not séene in many tongues or marketh not the deduction of wordes which time doth alter Fides in Latine the Gothes comming into Italie and corrupting the language was turned first into fede and at this day in Italie they will say in fide en fede or ala fe And some vncunning Lawâ—ers that would make a newe barbarous latine worde to betoken lande giuen in fidem or as the Italian saith in fede or fe made it in feudum or feodum The nature of the worde appeareth more euident in those which we call to fef feof or feoffees the one be fiduciary possessores or fidei commissarij the other is dare in fiduciam or fidei commissum or more latinely fidei committere The same Litleton was as much deceiued in withernam diuerse other olde wordes This withernam he interpreteth vetitum nauium in what language I knowe not whereas in trueth it is in plaine Dutche and in our olde Saxon language wyther nempt alterum accipere iterum rapere a worde that betokeneth that which in barbarous Latine is called represalia when one taking of me a distresse which in Latine is called pignus or any other thing and carying it away out of the iurisdiction wherein I dwell I take by order of him that hath iurisdiction an other of him againe or of some other of that iurisdiction and doe bring it into the iurisdiction wherein I dwell that by equal wrong I may come to haue equall right The manner of represalia and that we call withernam is not altogether one But the nature of them both is as I haue described and the proper signification of the words doe not much differ But to returne thither where we did digresse ye see that where the persons be frée and the bodies at full libertie and maximè ingenui yet by annexing a condition to the lande there is meanes to bring the owners and possessors thereof into a certaine seruitude or rather libertinitie That the tenaunts beside
both their owne liuing and parte of their maisters by these meanes doe come to such wealth that they are able and daily doe buy the landes of vnthriftie gentlemen and after setting their sonnes to the schoole at the Uniuersities to the lawe of the Realme or otherwise leauing them sufficient landes whereon they may liue without labour doe make their saide sonnes by those meanes gentlemen These be not called masters for that as I saide pertaineth to gentlemen onely But to their surnames men adde goodman as if the Surname be Luter Finch White Browne they are called goodman Luter goodman White goodman Finch goodman Browne amongest their neighbours I meane not in matters of importance or in lawe But in matters of lawe and for distinction if one were a knight they would write him for example sake sir Iohn Finch knight so if he be an esquier Iohn Finch esquier or gentleman if he be no gentleman Iohn Finch yeoman For amongest the gentlemen they which claime no higher degrée and yet be to be exempted out of the number of the lowest sort thereof be written esquiers So amongest the husbandmen labourers lowest and rascall sort of the people such as be exempted out of the number of the rascabilitie of the popular bee called and written yeomen as in the degrée next vnto gentlemen These are they which olde Cato calleth Aratores and optimos ciues in Republica and such as of whom the writers of cōmon wealthes praise to haue manie in it Aristoteles namely reciteth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 these tende their owne businesse come not to meddle in publike matters and iudgements but when they are called and gladde when they are delivered thereof are obedient to the gentlemen and rulers and in warre can abide trauaile and labour as men vsed to it yet within it soone at an ende that they might come home liue of their owne When they are foorth they fight for their Lordes of whom they hold their landes for their wiues and children for their countrey and nation for praise and honour against they come home and to haue the loue of their Lorde and his children to be continued towardes them and their children which have aduentured their liues to and with him and his These are they which in the old world gat that honour to Englande not that either for witte conduction or for power they are or were euer to be compared to the gentlemen but because they be so manie in number so obedient at the Lordes call so strong of bodie so heard to endure paine so couragious to aduenture with their Lorde or Captaine going with or before them for else they be not hastie nor neuer were as making no prosession of knowledge of warre These were the good archers in times past and the stable troupe of footemen that affaide all France that would rather die all than once abandon the knight or gentleman their Captaine who at those daies commonly was their Lorde and whose tenauntes they were readie besides perpetuall shame to be in danger of vndoing of them selues all theirs if they should showe any signe of cowardise or abandon the Lorde Knight or Gentlemen of whom they helde their liuing And this they haue amongest them from their forefathers tolde one to an other The gentlemen of France and the yeoman of Englande are renowned because in battle of horsemen Fraunce was many times too good for vs as we againe alway for them on foote And gentlemen for the most part be men at armes and horsemen and yeomen commonlie on foote howesoeuer it was yet the gentlemen had alwaies the conduction of the yeomen and as their captaines were either a foote or vppon a little nagge with them and the Kinges of Englande in foughten battles remaining alwaies among the footemen as the French Kinges amongst their horsemen Each Prince therby as a man may gesse did shew where he thought his strength did consist What a yeoman is I haue declared but from whence the worde is deriued it is hard to say it cannot be thought that yeomen should be said a young man for commonly wee doe not call any a yeoman till he be married and haue children and as it were haue authoritie among his neighbours Yonker in lowe dutch betokeneth a meane gentleman or a gay fellowe Possible our yeomen not beeing so bolde as to name themselues gentlemen when they came home were content when they had heard by frequentation with lowe dutchmen of some small gentleman but yet that would be counted so to be called amongest them yonker man the calling so in warres by mockage or in sport thone an other when they come home yonker man and so yeoman which worde now signifieth among vs a man well at ease and hauing honestlie to liue and yet not a gentleman whatsoeuer that worde yonker man yonke man or yeoman doth more or lesse signifie to the dutch men Of the fourth sort of men which doe not rule CHAP. 24. THe fourth sort or classe amongest vs is of those which the olde Romans called capite censij proletarij or operae day labourers poore husbandmen yea marcantes or retailers which haue no frée lande copiholders and all artificers as Taylers Shoomakers Carpenters Brickemakers Bricklayers Masons c. These haue no voice nor authoritie in our common wealth and no account is made of them but onelie to be ruled not to rule other and yet they be not altogether neglected For in cities and corporate townes for default of yeomen enquests and Iuries are impaneled of such manner of people And in villages they be commonly made Churchwardens alecunners and manie times Constables which office toucheth more the common wealth and at the first was not imployed vppon such lowe and base persons Wherefore generally to speake of the common wealth or policie of Englande it is gouerned administred manured by thrée sortes of persons the Prince Monarch and head gouerner which is called the king or if the crowne fall to a woman the Quéene absolute as I haue héeretofore saide In whose name and by whose authoritie all things are administred The gentlemen which be diuided into two partes the Baronie or estate of Lordes conteyning barons and all that bee aboue the degrée of a baron as I haue declared before and those which be no Lords as Knightes Esquires and simplely gentlemen The thirde and last sorte of persons is named the yeomanrie each of these hath his part and administration in indgementes corrections of defaultes in election of offices in appointing and collection of tributes and subsidies or in making lawes as shall appeare héereafter THE SECOND booke Of the Parliament and the authoritie thereof CHAP. 1. THe most high and absolute power of the realme of Englande consisteth in the Parliament For as in warre where the king himselfe in person the nobilitie the rest of the gentilitie and the yeomanrie are is y e force and power of Englande so in peace consultation where the Prince is
a certaine proportiō betwéene the scarcity and plentie of other thinges with gold and siluer as I haue declared more at large in my booke of monie For all other measures and weightes aswell of drie thinges as of wet they haue accustomed to be established or altered by the Parliament and not by the princes proclamation only The prince vseth also to dispence with lawes made whereas equitie requireth a moderation to be had and with paynes for transgression of lawes where the payne of the lawe is applyed onely to the prince But where the forfaite as in popular actions it chaunceth many times is part to the prince the other part to the declarator detector or informer there the prince doth dispence for his owne part onely Where the criminall action is intended by inquisition that maner is called with vs at the princes suite the prince giueeth absolution or pardon yet with a clause modo stet rectus in curia that is to say that no man obiect against the offendor Whereby notwithstanding that he hath the princes pardon if the person offended will take vppon him the accusation which in our language is called the appeale in cases where it lieth the princes pardon doth not serue the offendor The prince giueth all the chiefe and highest offices or magistracies of the realme be it of iudgement or dignitie temporall or spirituall and hath the tenthes and first fruites of all Ecclesiasticall promotions except in the Uniuersities and certaine Colledges which be exempt All writtes executions and commaundementes be done in the princes name We doe say in England the life and member of the kinges subiectes are the kinges onely that is to say no man hath hault nor moyenne iustice but the king nor can hold plea thereof And therefore all those pleas which touche the life or the mutilation of man be called pleas of the crowne nor can be dooke in the name of any inferior person than he or shée that holdeth the crowne of Englande And likewise no man can giue pardon thereof but the prince onely Although in times past there were certaine countie Palatines as Chester Durham Clie which were hault iusticers and writtes went in their name and also some Lorde marchers of Wales which claymed like priuiledge All these are now worne away The supreme iustice is done in the kinges name and by his authoritie onely The Prince hath the wardshippe and first mariage of all those that hold landes of him in chiefe And also the gouernement of all fooles natural or such as be made by aduenture of sicknes and so continue if they be landed This being once graunted by act of Parliament although some inconuenience hath béene thought to grow thereof sith that time it hath béene thought verie vnreasonable yet once annexed to the crowne who ought to go about to take the clubbe out of Hercules hand And being gouerned iustly rightly I see not so much inconuenience in it as some men would make of it diuerse other rights and preeminences the prince hath which be called prerogatiues royalles or the prerogatiue of the king which be declared particularly in the bookes of the common lawes of England To be short the prince is the life the head and the authoritie of all thinges that be doone in the realme of England And to no prince is doone more honor and reuerence than to the King and Queene of Englande no man speaketh to the prince nor serueth at the table but in adoration and kneeling all persons of the realme be bareheaded before him insomuch that in the chamber of presence where the cloath of estate is set no man dare walke yea though the prince be not there no man dare tarrie there but bareheadded This is vnderstood of the subiectes of the realme For all strangers be suffered there and in all places to vse the manner of their countrie such is the ciuilitie of our nation The chiefe pointes wherein one common wealth doth differ from an other CHAP. 4. NOw that we haue spoken of the parliament which is the whole vniuersall and generall consent and authoritie aswell of the prince as of the nobilitie and commons that is to say of the whole head and bodie of the realme of England and also of the prince which is the head life and gouernor of this common wealth there remaineth to shewe how this head doth distribute his authoritie and power to the rest of the members for the gouernment of this realme and the commō wealth of the politique bodie of England And whereas as all common wealthes and gouernmentes be most occupyed and be most diuerse in the fashion of fiue thinges in making of lawes and ordinaunces for their owne gouerment in making of battel peace of truce with forraine nations in prouiding of mony for the maintenance of themselues within thēselues defence of themselues against their enemies in choosing and election of the chiefe officers and magistrates and fiftly in the administration of iustice The first and thirde we haue shewed is doone by the prince in parliament The seconde and fourth by the prince himselfe The fift remaineth to be declared Of the three maners and formes of trialles or iudgementes in England CHAP. 5. By order and vsage of Englande there is three wayes and maners whereby absolute and definite iudgement is giuen by parliament which is the highest and most absolute by battle and by the great assise Triall or iudgement by parliament CHAP. 6. THe matter of giuing iudgement by parliament betweene priuate and priuate man or betweene the prince and any priuate man be it in matters criminall or ciuill for land or for heritage doth not differ frō thorder which I haue prescribed but it proceedeth by bill thrise read in ech house and assented to as I haue saide before and at the last day confirmed and allowed by the prince Howbeit such bils be seeldome receaued because that great counsell being enough occupyed with the publique affaires of the realme will not gladly intermedle it selfe with priuate quarels questions Triall of iudgement by battle CHAP. 7. THis is at this present not much vsed partly because of long time the Pope and the cleargie to whom in times past we were much subiect alwayes cryed against it as a thing damnable and vnlawful and partly because in all common wealthes as to the tongue so to the maners fashions habites yea and kindes of trials and iudgmentes and to all other thinges that is therein vsed time and space of yeares bringeth a chaunge But I could not yet learne that it was euer abrogated So that it remaineth in force whensoeuer it be demanded The maner of it is described in Briton The triall by affise or xij men first of the three partes which be necessary in iudgement CHAP. 8. THe two first iugdementes be absolute supreme and without appeale and so is also the iudgement by the great affise And because our manner of iudgementes in England is in
haue no externe seruice wherewith to occupie their buisie heads handes accustomed to fight and quarell must néedes séeke quarels and contentions amongest themselues and become so readie to oppresse right among their neighbours as they were woont before with praise of manhoode to be in resisting iniurie offered by their enemies So that our nation vsed hereunto vpon that more insolent at home and not easie to be gouerned by Lawe and politike order men of power beginning many fraies and the stronger by factions and parties offering too much iuiurie to the weaker were occasions of making good Lawes First of reteiners that no man should haue aboue a number in his Liuerie or retinue then of the enquirie of routs and riots at euerie Sessions and of the lawe whereby it is prouided that if any by force or by riot enter vpon any possessions the Iustices of the peace shal assemble themselues remooue the force within certain time enquire thereof And further because such things are not commonlie done by meane men but by such as be of power force be not to be dealt withal of euerie man nor of meane Gentlemen if the riot be found certified to the Kings Counsell or if otherwise it be complained of the partie is sent for and he must appeare in this starre chamber where séeing except the presence of the Prince onely as it were the maiestie of the whole Realme before him being neuer so stoute he will be abashed and being called to aunswere as he must come of what degrée soeuer he be he shall be so charged with such grauitie with such reason remonstrance and of those chiefe personages of Englande one after an other handeling him on that sort that what courage soever he hath his heart will fall to the grounde and so much the more when if he make not his aunswere the better as seldome he can in so open violence he shalbe commaunded to the Fléete where he shall be kept in prison in such sort as these Iudges shall appoint him lie there till he be wearie aswell of the restraint of his libertie as of the great expences which he must there sustaine and for a time be forgotten whiles after long suite of his friendes he will be glad to be ordered by reason Sometime as his deserts be he payeth a great fine to the Prince besides great costs and dammages to the partie and yet the matter wherefore he attempteth this riot and violence is remitted to the common lawe For that is the effect of this Court to bridle such stoute noble men or Gentlemen which would offer wrong by force to any manner men and cannot be content to demaund or defend the right by order of lawe This court began long before but tooke great augmentation and authoritie at that time that Cardinall Wolsey Archebishop of Yorke was Chauncellor of Englande who of some was thought to haue first deuised y ◠Court because that he after some intermission by negligence of time augmented the authoritie of it which was at that time maruellous necessary to doe to represse the insolencie of the noble men and gentlemen of the North partes of Englande who being farre from the King and the seate of iustice made almost as it were an ordinarie warre among themselues and made their force their Lawe banding themselues with their tenaunts and seruauts to doe or reuenge iniurie one against an other as they listed This thing séemed not supportable to the noble prince King Henrie the eight and sending for them one after an other to his Court to aunswere before the persons before named after they had had remonstrance shewed them of their euill demeanor and béene well disciplined as well by words as by fléeting a while and thereby their purse and courage somwhat asswaged they began to range themselues in order and to vnderstand that they had a Prince who would rule his subiects by his lawes and obedience Sith that time this court hath béene in more estimation and is continued to this day in manner as I haue saide before Of the Courts of Wards and Liueries CHAP. 5. HE whom we call a ward in Englande is called in Latine pupillus and in Gréeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The gardian is called in Latine tutor in Gréeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 A warde or infant is taken for a childe in base age whose father is dead The Romanes made two distinctions pupillum minorem the one to xiiii yere old the other was accounted from thence to xxv And as pupillus had tutorem so minor had curatorem til he came to the age of xxv These tutors or curators were accountable for the reuenues of the pupils minors lands great prouision and many lawes and orders is made for them in the bookes of the ciuil Lawe for rendering iust true accounts So that to be a gardian or tutor was accounted among them to be a charge or trouble a thing subiect to much encumbraunce and small profite so that diuerse meanes were sought for to excuse men from it With vs this is cleane contrarie for it is reckoned a profite to haue a warde For the Lorde of whom the warde doeth hold the land so soone as by the death of the father the childe falleth warde vnto him he seaseth vpon the body of the ward and his landes of which so that he doeth nourish the ward he taketh the profite without accounts and beside that offering to his ward couenable mariage without dispergement before the age of xxl. yeres if it be a man or xiiii if it be a woman If the ward refuse to take that mariage he or she must pay the value of the mariage which is commonly rated according to the profite of his landes All this while I speake of that which is called in French garde noble that is of such as holde lands of other by knight seruice for that is an other kinde of seruice which we call in Frenche gard returier we call it gard in socage that is of such as doe not holde by knight seruice but by tenure of the plough This wardship falleth to him who is next of the kinne and cannot inherite the land of the warde as the vncle by the mothers side if the land doe discend by the father and of the fathers side if the lande discend by the mother This gardian is accountable for the reuenues and profites of the land as the tutor by the ciuill Lawe to the warde or pupill so soone as he is of full age The man is not out of wardshippe by our lawe till xxj yere olde from thence he is reckoned of full age aswell as in the Romane lawes at xxv The woman at xiiij is out of warde for shée may haue an husband able to doe knightes seruice say our bookes And because our wiues be in the power as I shall tell you hereafter of their husbands it is no reason she should be in
two diuerse gards Many men doe estéeme this wardship by knightes seruice very vnreasonable and vniust and contrarie to nature that a Fréeman and Gentleman should be bought and solde like an horse or an oxe and so change gardians as masters and lordes at whose gouernement not onely his bodie but his landes and his houses should be to be wasted and spent without accounts and then to marie at the will of him who is his naturall Lorde or his will who hath bought him to such as he like not peraduenture or else to pay so great a ransom This is the occasion they say why many gentlemen be so euil brought vp touching vertue and learning and but onely in deintinesse and pleasure and why they be maried very young and before they bee wife and many times do not greatly loue their wiues For when the father is dead who hath the natural care of his childe not the mother nor the vnckle nor the next of kinne who by all reason would haue most naturall care to the bringing vp of the infant and minor but the Lorde of whom he holdeth his land in knights seruice be it the King or Quéene Duke Marquesse or any other hath the gouernement of his bodie and mariage or else who that bought him at the first second or thirde hande The Prince as hauing so many must néedes giue or sell his wardes away to other and so he doeth Other doe but séeke which way they may make most aduauntage of him as of an oxe or other beast These all say they haue no naturall care of the infant but of their owne gaine and especially the buyer will not suffer his warde to take any great paines either in studie or any other hardenesse least he should be sicke and die before he hath maried his daughter sister or cousin for whose sake he bought him and then all his money which he paide for him should be lost So he who had a father which kept a good house and had all things in order to maintaine it shall come to his owne after he is out of wardshippe woods decayed houses fallen downe stocke wasted and gone land let foorth and plowed to the baren and to make amends shall pay yet one yeres rent for reliefe and sue ouster le maind beside other charges so that not of manie yeres and peraduenture neuer he shall be able to recouer and come to the estate where his father left it This as it is thought was first graunted vpon a great extremitie to King Henrie the 3. for a time vpon the warre which he had with his Barons and afterward increased and multiplied to more and more persons and grieuances and will be the decay of the nobilitie and libertie of England Other againe say the ward hath no wrong For eyther his father purchased the lande or it did discend vnto him from his auncesters with this charge And because he holdeth by knightes seruice which is in armes and defence séeing that by age he cannot doe that whereto hee is bound by his lande it is reason he aunswere that profite to the Lorde whereby he may haue as able a man to doe the seruice The first knights in Rome those that were chosen equites Romani had equum publicum on which they serued and that was at the charge of widowes and wards as appeareth by Titus Liuius because that those persons could not doe bodilie seruice to the common wealth Wherfore this is no newe thing but thought reasonable in that most wise common wealth and to the prudent King Seruius Tullius As for the education of our common wealth it was at the first militaire and almost in all things the scope and deseigne thereof is militaire Yet was it thought most like that noble men good knights and great captaines would bring up their wards in their owne feates and vertues and then mary them into like rase and stocke where they may finde and make friendes who can better looke to the education or better skill of of the bringing vp of a gentleman than he who for his higher nobilitie hath such a one to holde of him by knights seruice or would doe it better than he that looketh or may claime such seruice of his ward when age and yeres will make him able to doe it That which is saide that this maner of wardship began in the time of King Henrie the 3. cannot séeme true For in Normandie and other places of Fraunce the same order is And that statute made in King Henrie the thirds time touching wards to him that will wey it wel may séeme rather a qualification of that matter and an argument that the fashion of wardship was long before but of this matter an other time shall be more conuenient to dispute This may suffice to declare the maner of it Of VViues and mariages CHAP. 6. THe wiues in Englande be as I saide in potestate maritorum not that the husbande hath vitae ac necis potestatem as the Romans had in the olde time of their children for that is onely in the power of the Prince and his lawes as I haue saide before but that whatsoever they haue before mariage as soone as mariage is solemnished is their husbandes I meane of money plate iuelles cattaile and generally all moueables For as for lande and heritage followeth the succession and is ordered by the lawe as I shall say héereafter and what soever they gette after mariage they get to their husbands They neither can giue nor sell anie thing either of their husbandes or their owne Theirs no moueable thing is by the law of England constanti matrimonio but as peculium serui aut filijfamilias and yet in moueables at the death of her husbande she can claime nothing but according as hee shall will by his Testament no more than his sonne can all the rest is in the disposition of the executors if he die testate Yet in London and other great cities they haue that lawe and custome that when a man dieth his goods be diuided into thrée partes One thirde is imployed vppon the buriall and the bequestes which the testator maketh in his testament An other thirde part the wife hath as her right and the thirde third part is the dewe and right of his children equally to be diuided among them So that a man there can make testament but of one thirde of his goods if he die interstate the funerals deducted the goods be equally diuided betwéene the wife and the children By the common lawe of Englande if a man die intestate the Ordinarie which is the Bishoppe by common intendment sometime the Archdeacon Dean or Prebendarie by preuiledge and prescription doeth commit the administration of the goods to the widowe or the child or next kinsman of the dead appointing out portions to such as naturally it belongeth vnto and the Ordinarie by cōmon vnderstanding hath such grauitie and discretion as shalbe méete for so absolute an authoritie