every feodal Lord and not begun in France 'till Feuds were there made hereditary by Hugh Capet nor in England till William the Conqueror did the like as before appears The reason of it was to preserve the memory of the Tenure and of the duty of the Tenant by making every new Tenant at his entry to recognize the interest of his Lord lest that the Feud being now hereditary and new heirs continually succeeding into it they might by little and little forget their duty and substracting the services deny at last the Tenure it self We see at this day frequent examples of it for by neglecting of doing homage and those services Tenures usually are forgotten and so revolv'd to the King by Ignoramus to the great evil of their posterity that neglect it But the Saxons having only two kind of lands Bocland and Folcland neither of them could be subject unto homage for the Bocland which belong'd properly to their greater Thanes tho' it were hereditary yet was it alodium and libera ab omni seculari gravedine as before is shewed and thereby free from homage And the Folcland being not otherwise granted by the King or his Thanes than at will or for years or for life the tenant of it was not to do any homage for it For Justice Littleton biddeth us note that none shall do homage but such as have an estate in fee simple or fee taile c. For saith he 't is a maxim in law that he which hath an estate but for term of life shall neither do homage nor take homage But admit the Saxons had the ceremony of doing homage among them yet was it not a certain mark of Knights-service for it was usual also in Socage-Tenure And in elder ages as well a personal duty as a praedial that is done to Princes and great Men either by compulsion for subjection or voluntary for their protection without receiving any feud or other grant of land or benefit from them And he or they which in this manner put themselves into the homage of another for protection sake were then called homines sui and said commendare se in manus ejus or commendare se illi and were thereupon sometimes called homines ejus commendati and sometimes commendati without homines as in Doomsday often Tho' we have lost the meaning of the phrase yet we use it even to this day Commend me unto such a man which importeth as much as our new compliment taken up from beyond the Seas let him know that I am his servant See the quotations here annexed and note that tho' the Saxons did as we at this day call their servants and followers homines suos their men yet we no where find the word Tenure or the ceremony of homage among them nor any speech of doing or of respiting homage CHAP. XXI What manner of Fealty among the Saxons SO for Fealty if we shall apply every oath sworn by Servants and Vassals for fidelity to their Lord to belong unto Fealty we may bring it from that which Abraham imposed upon his servant put thy hand under my thigh and swear c. For the Saxons abounded with oaths in this kind following therein their Ancestors the Germans who as Tacitus saith took praecipuum Sacramentum a principal oath to defend the Lord of the Territory under whom they lived and to ascribe their own valour to his glory So likewise the homines commendati before mention'd yea the famuli ministeriales and houshold servants of Noble persons were in ancient times and within the memory of our fathers sworn to be faithful to their Lords These and such other were anciently the oaths of Fealty but illud postremo observandum saith Bignonius a learned French-man of the King 's great Council fidelitatem hodie quidem feudi causa tantum praestari shewing farther that Fealty was first made to Princes by the Commendati and Fideles without any feud given unto them and that the Princes afterwards did many times grant unto them feuda vacantia as to their servants but whether the oath of fealty were so brought in upon feodal tenants or were in use before he doth not determine In the mean time it hereby appeareth that fealty in those days was personal as well as feodal or praedial which imposeth a necessity upon them of the contrary part in the Report that if they meet with fealty among the Saxons they must shew it to be feodal and not personal for otherwise it maintaineth not their assertion I will help them with a pattern of fealty in those times where Oswald Bishop of Worcester granting the lands of his Bishoprick to many and sundry persons for three lives reserv'd a multitude of services to be done by them and bound them to swear That as long as they held those lands they should continue in the commandments of the Bishop with all subjection I take this to be an oath of Fealty but we must consider whether it be personal or praedial If personal it nothing then concerneth Tenures and consequently not our question If praedial then must it be inherent to the land which here it seemeth not to be but to arise by way of contract And being praedial must either be feodal as for land holden by Knight-service or Colonical as for lands in Socage If we say it is feodal then must there be homage also as well as fealty for homage is inseperable from a feud by Knight-service but the estates here granted by Oswald being no greater than for life the Grantees must not as we have shewed either make or take homage And being lastly but Colonical or in Socage it is no fruit of a Tenure in Capite by Knight-service nor belonging therefore to our question So that if fealty be found among the Saxons yet can it not be found to be a fruit of Knight-service in Capite as the Report pretendeth it See Fidelitas in my Glossary CHAP. XXII No Escuage among the Saxons What in the Empire THe word Scutagium and that of Escuage is of such novelty beyond the Seas as I find it not among the feudists no not among the French or Normans themselves much less among the Saxons Yet I meet with an ancient law in the Novella of Constantine Porphyrogenita Emperour of Greece in the year 780. that gives a specimen of it tho' not the name Quaedam esse praedia militaria quibus cohaereat onus Militiae ita ut possessorem necesse sit se ad militiam comparare domino indicante delectum vel si nolit aut non possit se ad delectum exhibere certam eo nomine pecuniam fisco dependere quae feudorum omnium lex est c. This tells us that there were certain lands to which the burden of warfare was so adherent that every owner of them was tyed upon summons made by his Lord to make his appearance therein or else to pay certain money by way
times and that they were not made otherwise than for life or three lives for so I find them in the Abby-books And I also suppose that they to whom these lands were granted were the Thani Episcopi Thani Ecclesiae spoken of in Doomsday-book and that the lands themselves were such as in the same book are usually called Thain-lands Ecclesiae Episcopi and Abbatis But I see they were laden with many services which the lands of the King's Thane in respect of his dignity and person were free from Therefore when this very Bishop by another Charter granted tres cassatas three hydes of land in Cungle cuidam Ministro Regis to one of the King's Thanes nam'd Alfwold and to his Mother if she surviv'd during their lives he put no service upon the King's Thane but saith plena glorietur libertate excepta expeditione rata Pontis arcisve constructione the common exception in grants unto the Kings Thanes as before appeareth and yet the services thereby excepted belonged not either to the Bishop or the King himself otherwise than pro bono publico and common necessity After all this I beat still upon the old string that here yet is nothing to prove Wardship or Marriage or as the law then stood a Tenure by Knights-service for we have made it manifest that Expedition and building of Castles and Bridges were no Feodal services nor grew by Tenure And as for these that were tyed to ride and go up and down with their Lord Baraterius an old Feudist saith that a Knights fee may be given so ut Vassallus in diebus Festivis cum uxore Domini ad Ecclesiam vadat and the feudal law it self inferreth as much Lib. 2. Tit. 3. But our Bracton speaking of our Law here in England de Invest feud in his time touching such Tenants calleth them Rodknights alias Radknights Lib. 2. Cap. 35. nu 6. ut siquis debeat equitare cum Domino suo de Manerio in Manerium and saith not that it is Knight-service but that it is a Serjantie and that although such sometimes do Homage yet the Lord shall not have Ward and Marriage Admit notwithstanding that it were Knight-service and that the lands thus holden were Knights Fees during the life of the Tenant yet where is the Wardship Marriage and Releif Who shall undergo these servitudes since the Tenure and all the services are determin'd with the life of the Tenant CHAP. XXVII Inducements to the Conclusion SEeing then that neither the greater Thanes nor the lesser Thanes among the Saxons were subject to the rules of our Knight-service upon whom then if it were in use among them did it lye For as touching the Clergy it is said in the Laws of Edw. the Confessor cap. 11. that the King and the people magis in Ecclesiae confidebant Orationibus quam in Armorum defensionibus And the Report it self confesseth pag. 3. in pede That the possessions of Bishops and Abbots were first made subject to Knight-service in Capite by William the Conqueror in the fourth year of his reign for their lands were held in the times of the Saxons In pura libera eleemosyna free ab omni servitio seculari c. Though this be not true in the latter part being strictly taken for no doubt their lands were subject to the Trinodi necessitati viz. Expeditioni pontis arcisque constructioni as before appeareth yet cometh it very fitly to my purpose for hereby it is evident that if the Trinodis necessitas made no Tenure by Knight-service or in Capite in the Church Lands then neither did it in the Thane-lands as before we have shew'd and then much less in the land of Churles and Husbandmen commonly call'd the Socmanni for it is agreed on all hands that their lands were holden no otherwise than by Socage Therefore if all Kent in the Saxon's time were Gavelkind then could there be no Tenures by Knight-service in all that County For Glanvil Lib. 7. c. 3. telleth us That where the inheritance is divideable among the sons it is Socage And his reason is because that where 't is holden by Knight-service the Primogenitus succedit in toto This Kentish custom was ab initio the general Law of England and of all Nations Jews Greeks Romans and the rest and so continueth even till this day where the Feodal Law hath not altered it which first happen'd here in England when the Normans introducing their Feuds settled the whole inheritance of them upon the eldest son which the ancient Feodal Law it self did not as we before have noted till Feuds were grown perpetual The reason as I take it that begat this alteration was for that while the Feud did descend in Gavelkind to the Sons and Nephews of the Feodatorie the services were suspended till the Lord had chosen which of the Sons he would have for his Tenant and then it was uncertain whether the party chosen would accept of the Feud or not for sometimes there might be reasons to refuse it To return where I left it makes to the proof of all this that has been said and for conclusion seems to be unanswerable that the old inheritance which in the Saxons time belong'd to the Crown called in Doomsday Terra Regis and in the Law books Antient Demesne containing a great part of every County had not any Lands within it or within any Mannor thereof holden by Knight-service For Fitz-Herbert saith that Nul terres sont antient demesne forsque terres tenus en Socage And therefore if the Tenant in ancient Demesne will claim to hold of the Lord by Knights-service it is good cause to remove the Plea because that no Lands holden of a Mannor which is antient Demesne are holden by other services of the Lord than by Socage for the Tenants in antient Demesne are call'd Socmanni that is to say Tenants del carve Angl. le plough Thus far Fitz-Herbert Now if in the Mannors of the King himself there were then no Lands holden by Knight-service throughout all England it will then in all probability follow that there were none likewise among his Subjects in the Saxons time and consequently that our Feudal Law was not introduc'd before the Conquest Mr. Cambden by their own confession is of the same opinion and Mr. Selden himself whom they alledge against me is clearly with me as before I have shew'd If these our three opinions avail nothing we have yet a fourth to strengthen us great Bracton the most learned in our ancient Laws and Customs that hath been in this Kingdom who speaking of Forinsecum servitium as the Genus to these Tenures saith Lib. 2. cap. 16. Nu. 7. fol. 36. a. that it was call'd regale servitium quia spectat ad Dominum Regem non ad alium secundum quod in Conquestu fuit adinventum Here Bracton also refers the Invention to the Conquest but the Report waveth his opinion as well as ours notwithstanding
lands and portion of the Levites was given to do the service of the Tabernacle the lands of the other tribes to fight the battels of the Lord against his idolatrous enemies and to root them out Thus may fancy couple the remotest things To come lower down and nearer home Pausanias tell 's us that when Brennus who they say was a Britain invaded Greece with an army of Gauls every horseman of the better sort had two other horsemen to attend and second him as his Vassals and they three together were called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Trimarcesiam i. e. a society of three horsemen But Caesar saith that the nobler Gauls in his time had according to their abilities many horsemen attending them in war whom by a German word he calleth Ambactos which properly signifieth servants vassals workmen and labourers yet he by a fairer name expoundeth it there in Latin Clientes and in another place calleth them among the Germans Comites familiares as accounting them like Abraham's 318. Souldiers to be all their Lord's followers and of his family Tacitus likewise nameth them Comites as companions and followers quod bello sequi Dominum coguntur saith Cujacius But Tacitus further saith Gradus quinetiam ipse Comitatus habet judicio ejus quem sectantur that there were degrees in those companies as he whom they followed did appoint Like them perhaps in after-ages of Earls Barons Knights c. But how the Comites or Ambacti were maintained neither Caesar nor yet Tacitus have related As for such portions of land as we call Knights-Fees they could not then have any for Caesar speaking of the Germans saith and so it appears by Tacitus neque quisque agri modum certum aut fines proprios habet c. That no man hath any certain estate or peculiar bounds of lands but the Magistrate and Lords of the place assign from year to year to kindreds and such as live together what quantity of land and in what place they think good and the next year force them to remove The reason you may see in Caesar who also sheweth That they had no common Magistrate but the Lord of the Town or territorie set what laws he would among his followers or Ambactos These laws the Goths the Swedes the Danes and Saxons called Bilagines of By which in all these languages signifieth a town and lagh or laghen which signifieth laws as Gravius Suecus and our Saxon Authors testifie And tho' Jornandes a Spanish Goth writeth it after the Spanish corruption Bellagine◠yet we in England keep the very radix and word it self By-laws even unto this day tho' diverted somewhat from the sense that Caesar speaks of For we call them Town-laws or By-laws which the Townsmen make among themselves but Caesar sheweth that the Lords imposed them Herewith agreeth that of Tacitus or some other Ancient who speaking of the Germans saith Agricolis suis jus dicunt They give laws to them which dwell upon their lands For I take Agricolis here in the larger sense to extend to all that dwell upon the Lord's lands as well his military followers as his husbandmen in the same manner as solicolae containeth all that live upon the soil ruricolae all that live in the Country and coelicolae all that live in heaven These Lordships of Towns which Caesar speaketh of were after by the Normans called Maneria The Ambacti or Comites and these which he saith sectabantur Dominos suos were called Vassalli and sectatores manerii sive Curiae Domini Vassals and Suiters of Court The Bilagines or Town-laws were called Consuetudines and customs of the Mannor The jurisdiction which the Lord had over his followers and suiters was called the Court Baron and the portions of land c. assigned to his followers for their stipend or maintenance were at first called Munera after Beneficia and lastly Feuda or Tenant-lands which were of two sorts one for military men called Feudum militare and Feudum nobile tenure by Knights-service the other for husbandmen call'd therefore Feudum rusticum ignobile tenure in Socage or by the Plough Thus it appeareth that Feuds and Tenures and the Feudal law it self took their original from the Germans and Northern Nations In such condition therefore how obscure soever as Caesar and Tacitus left them to us Gerardus Niger the Consul of Milan who flourished about A. D. 1176. and first composed them into a book taketh them up as he there findeth them and speaking of the times of Caesar and Tacitus as having the forementioned passages under his eye saith Antiquissimo tempore sic erat in Dominorum potestate connexum ut quando vellent possent auferre rem in feudum à se datam And this agreeth with Caesar by whom it seemeth in the places before mentioned that the Ambacti or followers of the Germans had in those times either no land at all or no estate at all in their land or first but at the will of the Lord and then but for one single year Which Gerardus also confesseth to have been the condition of the eldest sort of feudataries for he saith presently after his former words Postea vero eo ventum est ut per annum tantum stabilitatem haberent res in feudum datae Thus for another while their Feudal Vassals whom here he calleth fideles and we now tenants by Knights-Service enjoyed their feuds no otherwise than from year to year at the pleasure of their Lords either by grant or sufferance till further grace confirmed them to them for divers years and at length for term of life which Gerardus also presently there declareth saying Deinde statutum est ut usque ad vitam fidelis producerentur feuda In this manner stood the principal feuds themselves even those of Earldoms and Dukedoms which they call feuda majora and feuda regalia in the latter time of the Saxons till the coming of the Conquerour But as touching the lesser feuds which we call Knights-Fees I find nothing in Abby-books otherwise than a numerous multitude of Leases and Grants made by Bishops and Abbats to their followers for term of life without mention of Tenure or Feudal service Yet I must confess that there is a notable precedent left us by Oswald Bishop of Worcester in the time of King Edgar who in granting out the lands of his Bishoprick unto his followers for life or three lives imposed upon them by a solemn Instrument ratified by the King himself a multitude of services and charges as well military as civil which after you shall here see and then consider how and whether they conduce to our Feuds or not If we understand them to be Feuds among the Saxons or of that nature then are we sure they were no more than for life and not inheritable nor stretching further without further grace obtained from the Lord.
For which purpose Conradus Salicus a French Emperour but of German descent going to Rome about fourty five years before the time of our King Edgar viz. sub An. Dom. 915. to fetch his Crown from Pope John X. made a Constitution upon the petition of his Souldiers That filii or aviatici the sons or if no Sons were living the Nephews or Grandsons as they call them of some of them should succeed in the Feud of their Father See the Constitution in the beginning of the fifth book of Feuds But Gerardus noteth that this law settled not the Feud upon the eldest Son or any other Son of the Feudatarie particularly but left it in the Lord's election to please himself with which of them he would After this Feuds were continued in divers places by several increments to the third fourth fifth sixth and seventh generation and sometime for want of lineal issue collaterally to the brother as Gerardus testifieth but whether by some positive law or by the munificence of the Lords he doth not tell us nor when or by whom they were made perpetual and hereditary tho' he confesseth that at last they grew to be extended in infinitum and then they began to be settled upon the eldest Son who formerly had no preheminence above a younger brother But while they stood sometimes produced in this manner by the indulgence of Princes to the third fourth or fifth generation c. some men of learning have concluded them to be hereditary as tho' there were no medium between a limitation how far so ever extended and infinitum To pass by that let us now go on in examination when and how Feuds became Hereditary Some suggest a shew of such a matter under the two Othones German Emperours who succeeded one the other about the year 973. But to rest upon the common and received opinion which we shall hereafter more at large declare the truth is that when Hugh Capet usurped the Kingdom of France againgst the Carolinges he to fortifie himself and to draw all the Nobility of France to support his Faction about the year 987. granted to them in the year 988. that whereas till then they enjoyed their Feuds and Honors but for life or at pleasure of their Princes they should from thenceforth for ever hold them to them and their heirs in Feudal manner by the Ceremony of Homage and oath of Fealty And that he would accordingly maintain them therein as they supported him and his heirs in the Crown of France which they joyfully accepted This was a fair direction for William of Normandy whom we call the Conquerour how to secure himself of this his new acquired Kingdom of England and he pretermitted not to take the advantage of it For with as great diligence as providence he presently transfer'd his Country-customs into England as the Black book of the Chequer witnesseth and amongst them as after shall be made perspicuous this new French custom of making Feuds hereditary not regarding the former use of our Saxon Ancestors who like all other Nations save the French continued till that time their Feuds and Tenures either arbitrary or in some definite limitation according to the ancient manner of the Germans receiv'd generally throughout Europe For by the multitude of their Colonies and transmigrations into all the chiefest parts thereof they carried with them such Feodal rights as were then in use amongst them and planting those rites and customs in those several Countries where they settled themselves did by that means make all those several Countries to hold a general conformitie in their Feuds and Military customs So by the Longobards they were carried into Italy by the Saliques into the Eastern parts of France by the Franks into the West part thereof by the Saxons into this our Britain by their neighbours the Western Goths who communicated with the Germans in manners laws and customs into Spain and by the Eastern Goths into Greece it self and the Eastern parts of Europe c. These I say carried with them into the parts of Europe where they settled such ancient Feudal customs as at the time of their transmigration were in use among them But the more prevalent and more generally receiv'd customs were those that were in use or taken up in the time of Conradus the Emperour and when Feuds became hereditary for on them especially is the Feudal Law grounded and composed tho' enlarg'd oftentimes by Constitutions of the Emperours and spread abroad into divers Nations by their example countenance or authority Wherein the Court of Milan was chiefly followed in rebus judicatis as appeareth by Duarenus and Merula but reserving unto every Nation their peculiar rights and customs For it was generally received into every Kingdom and then conceived to be the most absolute law for supporting the Royal estate preserving union confirming peace and suppressing robberies incendiaries and rebellions I conclude with Cujacius who upon the above-cited passages of Gerardus Niger saith Quam aliam Feudorum originem quaerimus His veluti incrementis paulatim feuda constituta sunt quae post Conradum usus recepit ut transirent ad liberos mares in infinitum c. The Military and Lay-Feuds being thus advanced from an arbitrary condition to become perpetual and hereditary did now in ordinary account leave their former name of Beneficia which were only temporary for years or life unto the Livings of the Clergy and retained to themselves the proper name of Feuds whereby they were produced to be perpetual and hereditary Cujacius therefore speaking of them both saith Feudum differt a beneficio quod hoc temporaneum fuit illud perpetuum And treating in another place of these beneficiarii and temporarii possessores he saith further Iisdem postea câ—pit concedi feudum in perpetuum quod est verum proprium Feudum Concluding in a third place that Propria Feudi natura haec est ut sit perpetua So that Cassineus in the Feuds of Burgundy saith that Omne Feudum quocunque modo acquisitum fit haereditarium cum successione sit redactum ad instar Allodialium That all Feuds by what means soever they be acquired are made hereditary in so much as by the continual succession of the children into the Feuds of their Fathers the Feuds are now brought to be like Allodial or patrimonial inheritances Thus Feudum which at first was but a tottering possession ad voluntatem Domini growing at length to be an irrevocable estate descending by many successions from son to son became at last to be an absolute inheritance and thereupon the words themselves Feudum and Haereditas in common use of speech Quem penes arbitrium est jus norma loquendi to be voces convertibiles and by a fair metonymia each to signifie other For as Horace further saith Verborum vetus interit aetas Et juvenum ritu florent modo nata vigentque Aptly
Christian King caused his own Laws to be put in writing about the year 605. as other Western Nations in an age or two before had done and as Bede saith wrote them in the Saxon tongue The first Charter if I shall so call it or writing touching lands and privileges was as a MS. of Canterbury reporteth made by Withredus King of Kent in the year 694. and as that Charter it self witnesseth was appointed to be kept in the Church of our Saviour at Canterbury as a precedent for posterity to imitate and tho' it appeareth not there in what language it was written yet I presume it was in the same with their Law which was the Saxon tongue For there be two copies of it extant in Latin so differing the one from the other as thereby they both appear to be translations For proof thereof the one of them useth the words Charta and Chartula which Ingulfus affirmeth to be brought in hither by the Normans that is above three hundred years after the time of this Charter of Withred's The other Latin copy termeth it Scriptum not Chartam and the Saxons themselves used neither of those words but called such writings in Latin Chirographos not Chartas as Ingulfus there also testifieth So that it hereby appeareth that the Prototype or first pattern of Charters which the Saxons imitated was not in Latin but in Saxon. Secondly it is therefore to be presumed and very strongly that tho' this Charter of Beorredus remaineth to us by a Latin copy yet the original it self like a thousand others was in the Saxon tongue Nor could it in all probability be otherwise for at the very time when it was made viz. in anno 868. learning was so generally subverted throughout England by the barbarous Danes that King Alfred who began to reign within four years after the date thereof saith Paucissimi fuerunt cis Humbrum qui vel preces suas communes sermone Anglico intelligere potuerant vel scriptum aliquod è Latino transferre Tam sane pauci fuerunt ut ne unum quidem recordari possum ex australi parte Thamesis tum cum ego regnare occaeperam But as their original Charters were in the Saxon tongue so in the Leiger-books in which they are preserved to us they are often set down in the Saxon and then because the books themselves are in Latin they are there translated also into Latin and often times set down in the Latin only without the Saxon as in the book of Ramsey-Abby which having no Charters in it in the Saxon tongue the Author of it saith that himself had there translated them all into Latin after that that Abby in the days of King Stephen had recovered her liberty Yet I deny not that Latin Charters might be often used by their latter Clergy-men when learning which in Beorred's time was utterly subverted began at last to recover life again Thirdly I conceive that the word feudum or feodum was not in use in Beorredus's days viz. anno 868. For proof whereof we are to consider the infancy youth and full age of the Feodal Law for according to these several times the Feodal Lands had their several denominations First they were called Munera then Beneficia and lastly Feuda as is aforesaid Marculfus who collected the Formulas or Precedents as we call them of Charters and Instruments of the time he lived in which was under Clodovaeus II. King of France about the year 660. maketh mention in his first book of Munera and in his second of Beneficia but no where of Feuda and he who a hundred years or more after him collected the Formula's incerti Autoris speaketh divers times of Beneficium but never nameth Feudum for that this term came not into use till afterwards when these Beneficia began to be granted in perpetuity Beneficium Regis saith Bignonius postea Feudum dictum est And in another place he saith Beneficii nomine ea praedia dicta sunt quae Feuda posteritas dixit initio namque vita accipientis finiebantur As if he should say they were called Beneficia when they were granted only for life of the Grantee but were called Feuda when they began to be granted in perpetuity and not before Cujacius therefore speaking of Feudatarii which word came into use with Feudum for Relatives mutuo se ponunt auferunt saith that when Actores custodesque proediorum nostrorum temporarii perpetui esse caeperunt c. when those who had the use and ordering of our Lands for a certain time began to enjoy them in perpetuity and yet retained their Latin name of Homines our Men they grew then also to be called after new and forreign names Vassalli Leudes and Feudatarii by the Princes and great Noblemen who choosed rather to grant them lands in perpetuity in consideration that they should do them military service And he saith that these names were first brought into Italy by the German Princes Where and particularly in Milan as Merula reporteth the Feodal Laws and Customs have had their original and from thence been propagated throughout Europe By this it appeareth that the words Feudum and Feudatarii were not in use till that the word Munera was grown obsolete Nor afterward till Beneficia leaving to be temporary or but for life became to be perpetual possessions which as I have often said was not long before the Conquest So that the word Feudum could not be in use in Beorredus's time who lived two hundred years before Fourthly Tho' the word Feudum were in the original Charter of Beorredus yet doth it not prove that our Feuds were then in use For call them Beneficia or call them Feuda certain it is that neither the one nor the other were then hereditary or perpetual but either temporary or for life only which at length begat the difference between Feuda and Beneficia for Beneficia in a restrained sense began to signifie no more than an estate for life in which sense it resteth at this day in our Clergy-men's Livings called Benefices and the word Feuda grew to be understood only of such Beneficia or Benefices as were perpetual and hereditary To return from whence we digressed I suppose it now appeareth sufficiently how some Feodal words are crept into Charters and writings of Saxon date and I think I may conclude that the words before mentioned Tenura tenentes tenementa tenere or tenendum in a feodal sense or feodum it self were not in use among them Much less Tenure in Capite Tenure by Knight-service Tenure in Socage or Frank-Almoign tho' the like services were performed to the Saxon Lordships by their Thanes and Theodens their Socmen or Husbandmen and their Beads-men or Clergy-men by way of contract for the lands received from them as were after the Conquest to the Norman Lordships by way of Tenure for lands holden of them The Neapolitan and Sicilian Constitutions which
under these names all the lands that belong'd thereunto And those that dwelt upon those mansas c. they called not tenentes holders as we do but manentes as persons abiding there All the foresaid words being of the middle-age-dialect not appropriated to the feodal language Fourthly In granting of feuds and feud lands the consideration is allways for matter de futuro as pro homagio servitio habendo But here in granting these Thane-lands the consideration is for service past or present signified by the quality of the Thane as fideli ministro meo or pro placabili obsequio not only without reservation of any future service but with express immunity from all services as to use the words of the Charters themselves 1. ut sint libera vel immunia à servitute mundana 2. Ab omni malorum obstaculo 3. Liberrima ab omni munduali obstaculo 4. Liberrimum ab omni munduali obstaculo in magnis modicis 5. Aeterna libertate jocundum 6. Liberum ab omni seculari gravedine Such was the freedom of these Thane-lands equal and no less than that of the lands given in Franck-Almoigne by King Edgar in the last cited Charter which are there said to be Omni terrenae servitutis jugo liberae imperpetuum Fifthly The Feodal lands might not be aliened without Licence But the Thane by the very words of his original Charter might grant them cuicunque voluerit Sixthly A Feodal tenant or tenant by Knights-service as we call him could not devise his land by Will before the statute of 32. Hen. VIII tho' it were with Licence of the Lord and of the King himself which law the Germans themselves do hold even unto this day And the Danes can yet devise no land by Will as I am informed but the Thane might devise his Thane-land to whom he would as appeareth bâ— the words of King Edward the Confessor in a Charter to Thola where he saith Possideat hanc meam regiam donaâ—â—onem quamdiu vivat post obitum suum cuicunque voluerit haeredi relinquat excluding hereby all title of Wardship and Feodal duties To the same effect are the rest of the Charters and therewith agreeth the priviledge of a Thane before mentioned Thani lex est ut sit dignus rectitudine testamenti sui As for that passage in the Will of Brictrick the Saxon where he seeketh his Lord s consent that his Will may stand I conceive it to be in respect of some â—oâ—â—land or custumary land which according to the use of that time he held at the will of his Lord and not in respect of any Thane-land For tho' this Brictrick were a man of great possessions yet was he none of the chiefest sort of Thanâ—s called the King's Thanes but as appeareth by his Will an under-Thane belonging to Aelfric who was Earl of Mercia And how far the priviledge of these under or lesser-Thanes extended I cannot yet determine Seventhly If Thane-land were of the nature of lands holden by Knight-service then by the Feodal law of that time it could not transire a lancea ad fusum that is it might not be granted to Women for Women were not then nor long after capable of Feodal land But the land here granted to Thola was Thane-land as appeareth by the very words of her Charter for that it is granted in aeternam haereditatem perpetualiter possidendam which words making an estate of inheritance were only proper to Thane-land otherwise called Bocland not to Folcland or Popular land which was but at Will of the Lord for years or for life Eighthly There could no tenure nor service lye upon the Thane-lands other than what was expressed in the Charters For in the end of every of them there was an horrible curse which in those days was fearfully respected laid by the King himself upon all those that should violate the Charter either by adding other incumbrances or by diminishing the granted immunities So that it is not to be supposed that there was any lurking Tenure or matter of plus ultra to impeach them The curse beginneth in every of the Charters with these words Si quis autem c. Ninthly and lastly Touching Expedition and repairing of Castles and Bridges which the Saxons called Burghbote and Brugbote tho' the two first of them be wholly military and the last serving as well for the passage of the King's Army as for the trade and commerce of his people yet were none of them either marks of Tenure or of Feodal service as appeareth by that we have formerly shew'd and by the testimony of these Charters where to use the words of Edw the Confessor in that to Thola it is said that they are Omnibus hominibus communia a common burthen to all men as belonging to the safety and sacred anchor both of the Kingdom and Common-wealth The Saxons therefore did not call them services or Feodal duties as things that lay upon the person of the owner but landirecta rights that charg'd the very land whosoever did possess it Church or Lay man And these duties were ordinarily excepted in every Charter not for that they should otherwise be extinguished but per superabundantem cautelam lest the general words precedent should be mistaken to involve them and to release that which the King could not release For tho' Ethelbald by his Charter to the Monks of Croyland did give the site of that Monastery with the appendancies c. libera soluta ab omni onere seculari in perpetuam elâ—emosynam yet in his Charter of priviledges granted to all Churches and Monasteries of his Kingdom speaking of the repairing of Castles and Bridges he confesseth and saith that Nulli unquam relaxari possunt And I suppose that the word Expedition was here omitted by the negligence of the Scribe for I never find it severed from repairing of Castles and Bridges in any other Charter And also tho' King Ethelwulf by his memorable Charter of priviledges ratified by the great Council of Winchester in the year 855. did by express words free Sanctam Ecclesiam that is all the Churches and Monasteries of his Kingdom ab Expeditione pontis extructione arcis munitione yet the whole Clergy about the year 868. did notwithstanding voluntarily assist his son Beorredus against the Danes with all the power they could as appeareth by the Charter of the same Beorredus CHAP. XI More touching the freedom of Thane-land out of Doomsday THo' that which is delivered in these Charters be authentical and need no farther proof yet to convince broad spreading errors the more manifestly it will not be unnecessary to shew what Doomsday it self relateth to confirm it For whereas lands holden in Capite and by Knights-service could not otherwise be disposed than by licence of the King or Superior Lord Doomsday sheweth that the Thane-lands might be used and disposed at the pleasure of the owner without impeachment
very Charters of the Saxon Kings themselves should stand together viz. That their Thanelands should be liberae ab omni seculari gravedine and yet be subject to that which of all other was most grievous viz. our Knights-service in Capite It may be answered as the Report in another place delivereth positively That Tenure in Capite cannot be transferred or extinct by release or grant for it is an incident inseparably annexed to the Crown The answer were good if once they had made it appear that both this Tenure and this Law were in force in the Saxons time There is nothing shew'd to prove that suggestion and were it true I should desire no better argument on my behalf than what the place it self bringeth with it For if Thaneland were converted into Reveland and that Reveland signify Socage-land then it is as manifest as the Sun that Tainland did not signify land holden by Knights-service in Capite for if it did then could it not decline into Socage-Tenure as their own Maxime doth demonstrate If there be a cloud before this Sun I shall remove it also My Lord Coke citing this place out of Doomsday noteth in the margin Herefordsâ— but delivereth both the title and the text by halfs The title is Hereford Rex the text thus Haec terra fuit tempore Edwardi Regis Tainland sed postea conversa est in Reveland Et idem dicunt legati Regis quod ipsa terra census qui inde exit furtim aufertur Regi The very title discovers the Tenure for if it be Terra Regis as the word Rex declareth it then it is plainly Ancient Demesne and every Lawyer will tell us that in ancient Demesne there was no Tenure by Knights-service but wholly in Socage So that this cloud now vanisheth into the air and our Tainland is clearly discovered to be but Socage I shall speak more of it afterwards But what construction shall we now find for the words in Doomsday Tainland conversa est in Reveland Hoc opus hic labor est It is sufficient for me to have quit my self of the objection they must seek some new interpretation Yet will I help them what I can in that also I suppose that the land which is here said to have been Thaneland T. E. R. and after converted into Reveland was such land as being reverted to the King after the death of his Thane who had it for life was not since granted out to any by the King but rested in charge upon the account of the Reve or Bailiff of the Mannour who as it seemeth being in this Lordship of Hereford like the Reve in Chaucer a false brother concealed the land from the Auditor and kept the profit of it to himself till the Surveiors who are here called Legati Regis discovered this falsehood and presented to the King that furtim aufertur Regi as by the words in the latter part of the paragraph which my Lord Coke reciteth appeareth Besides all this why should the coming of these lands into the Reve's accompt alter the nature of the Tenure seeing all men know that the Reves and Bailiffs of Mannours govern and dispose the lands thereof as well which are holden by Knights-service as those in Socage As for the old French MS. Custumary which they affirm doth mention Tenures by Knights-service long before the Saxons even in the time of the Britains I doubt not but there may be such a passage in it for the Law which they ascribe to Edward the Confessour for proving Feuds to be in use in his time affirmeth also that the Laws Dignities Liberties c. of the City of London were at that day the same which were in Old Great Troy But as they in the Report wave the one so I take them both for Romances and pass them over as not worth an answer Having thus particularly answered every argument inference and objection produced in the Report to prove our Feuds and Form of Tenures to have been in use amongst our Saxons I shall now conclude that it neither was nor could be so unless we shall assume that our poor illiterate Saxons in a corner of the World were the Authors of the Feodal Law and gave the precedent thereof to the Germans Longobards French Italians and the Empire For in none of these was it otherwise extant till about the end of our Saxon Monarchy then by such budds and branches as we formerly have expressed out of Caesar Tacitus and some other CHAP. XXV How the Saxons held their Lands and what obliged them to so many kinds of Services IT cometh now in question how the Saxons held their lands and what obliged them to that multitude of services which lay upon them both in war and peace As for Tenures I still say that they had not the name in use among them yet like the Jews the Greeks the Romans and other ancient Nations a multitude of services whereof some were personal and some praedial Personal services were those which a man did for his person or personal Estate either generally to the King and Common-wealth in publick occasions as in the Trinodi necessitate c. or particularly to his own Lord upon particular agreement between them like the Commendati before mentioned and some ministerial Officers and domestick servants Praedial service was that which was done after the same manner to the King or his Lord for land only and this was of three sorts Alodial Beneficiary and Colonical Alodial service was that which the Greater Thanes and other who had Alodial land otherwise called Bocland and as I take it Gavelkind and Hereditary land were tyed to do pro bono publico to the King and Common-wealth in respect of those Lands tho' by the Feudal law that kind of land was free from all Tenure and Feodal service I should not therefore use this solecism to call them services if the Dialect of our Law afforded me some other fit expression but the Saxons themselves term'd them Land-rights not services of which sort were the Trinodis necessitas of Expedition Burghbote and Brigbote the guarding of the sea and of the peace attendance upon the King's summons for his Park or Palace before expressed and besides them all the Tribute of Danegelt c. Beneficiary services were those which were done by the midling or lesser Thanes to the King and the greater Thanes either militarily in war or ministerially in peace for those portions of Out-land which being granted to them temporarily as at will of the Lord or for life or lives were then called Beneficia but being extended after to perpetuity they were named by the Normans Feoda The Creation manner variety and multitude of them you shall see in the Charter of Bishop Oswald by and by ensuing Colonical services were those which were done by the Ceorls and Socmen that is Husbandmen to their Lords the King and Thanes of all sorts
for some portions also of their Out-lands These were after called feoda rustica beyond the Seas with us Socage-lands and were holden at pleasure of their Lords either by rendring part of the profits thereupon growing or reared as victuals especially in Saxon called Feorms c. whereof see the rates in the Laws of King Ina Chap. 70. or by doing some works of Husbandry upon the Lord's Inlands now called his Demeans as Tillage Carriage Harvest-works c. Among all these diversities of services none cometh so near to the nature of Feuds and Tenures as the Beneficiary do Let us therefore consider them the more seriously by that notable pattern of them left unto us from Bishop Oswald who dividing much of the land of his Church of Worcester into those kind of portions which after the Feodal word then in use he called Beneficia granted the same unto his Thanes and followers not by the name of his milites or tenentes but of his fidos subditos for the term of three lives according to the manner which they retain in those parts even to this day and reserving to his Church and successors not homagium sâ—rvitium the material words in Tenure to create Knights-service in the Feodal Law but the services mentioned in his Charter secundum Conventionem cum eis factam sponsionem suam as the very words are there expresly But hear the Charter or rather Epistle as he himself calleth it which the King confirmed and a Councell The Aranga or preamble of it is a thankful acknowledgement of King Edgar's bounty and goodness to him the Bishop and his Church the conclusion after the manner of those times a curse and heavy imprecation against all such as shall spoil or violate the same Both which being long and nothing to our purpose I think convenient here to pretermit The rest is as followeth under the title given it in the Manuscript CHAP. XXVI The Charter whereby Oswald Bishop of Worcester disposed divers lands of his Church after the Feodal manner of that time entituled Indiculum libertatis de Oswaldes-Lawes-Hundred DOmino meo charissimo Regi Anglorum Edgaro ego Oswaldus Wigorniensis Ecclesiae Episcopus c. Quare quomodo fidos mihi subditos telluribus quae meae traditae sunt potestati per spatium temporis trium hominum id est duorum post se haeredum condonarem placuit tam mihi quam ipsis fautoribus consiliariis meis cum ipsius Domini mei regis licentia attestatione ut fratribus meis successoribus scil Episcopis per Chirographi cautionem apertius enuclearem ut sciant quid ab eis extorquere juste debeant secundum conventionem cum eis factam sponsionem suam unde hanc Epistolam ob cautelae causam componere studui nequis malignae cupiditatis instinctu hoc sequenti tempore mutare volens abjurare a servitio Ecclesiae queat Haec itaque conventio cum eis facta est ipso Domino meo Rege annuente sua attestatione munificentae suae largitatem roborante confirmante omnibusque ipsius regiminis sapientibus principibus attestantibus consentientibus hoc pacto eis terras Sanctae Ecclesiae sub me tenere concessi Hoc est ut omnis Equitandi lex ab eis impleatur quae ad Equites pertinet ut pleniter persolvant omnia quae ad jus ipsius Ecclesiae juste competunt scil ea quae Anglice dicuntur Ciricsceott Toll id est thelonium Tacc id est swinseade caetera jura Ecclesiae nisi Episcopus alicui eorum quid pardonare voluerit seseque quamdiu ipsas terras tenent in mandatis Pontificis humiliter cum omni subjectione perseverare etiam jurejurando affirment Super haec etiam ad omnis industriae Episcopi indigentiam semet ipsos praesto impendant Equos praestent ipsi Equitent ad totum piramiticum opus Ecclesiae calcis atque ad Pontis aedificum ultro inveniantur parati Sed Venationis sepem Domini Episcopi ultronei ad aedificandum repperiantur suaque quandocunque Domino Episcopo libuerit Venabula destinent Venatum Insuper ad multas alias indigentiae causas quibus opus est Domino Antistiti saepe furnisci sive ad suum servitium sive ad regale explendum semper illius Archiductoris dominatui voluntati qui Episcopatui praesidet propter beneficium quod illis praestitum est cum omni humilitate subjectione subditi fiant secundum ipsius voluntatem terrarum quas quisque possidet quantitatem Decurso autem praefati temporis curriculo viz. duorum qui post eos qui eas mode possident haeredum vitae spatio in ipsius Antistitis sit arbitrio quid inde velit quomodo sui velle sit inde ita stet sive ad suum opus eas retinere si sic sibi utile judicaverit sive eas alicui diutius praestare si sic sibi placuerit velit ita duntaxat ut semper Ecclesiae servitia pleniter ut praefati sumus inde persolvantur Ast si quid praefatorum delicti praevaricantis causa defuerit jurum praevaricationis delictum secundum quod Praesulis jus est emendet aut illo quo antea potitus est dono terra careat Siquis vero Diabolo instigante c. The sum of all aforesaid is that the Bishop's Tenant shall pay and do as followeth First That they shall perform all duties that belong to Horsemen That they shall pay all things that are due unto the Church and perform all other rights that belong to it That they shall swear to be in all humble subjection at the command of the Bishop as long as they shall hold these lands of him That as often as the occasion of the Bishops shall so require they shall present themselves to be ready for it and shall both furnish him with Horses and ride themselves That of their own accord they shall be ready to perform all the work about the Steeple of that Church and for the building of Castles and Bridges That they shall readily help to fence in the Bishop's Parks and to furnish him with Hunting weapons when he goeth a hunting That in many other cases when the occasion of the Lord Bishop shall require whether it be for his own service or for the King's service they shall in all humbleness and subjection be obedient to the chief Captain or Leader of the Bishoprick for the benefit done unto them and the quantity of land which every one of them possesseth That after the expiration of the three lives the land shall return again to the Bishoprick That if there be any defect in performing the premisses by reason that some shall vary or break the agreement the Delinquent shall make satisfaction according to the justice of the Bishop or shall forfeit the land which he had of his gift I suppose that this was the common manner of grants and reservations in those
Northampton who builded the gallery there but in Queen Mary's time the same was restored to that See where it so continueth 5. The Lord Arch-bishop of YORK'S house was the White-hall much enlarg'd and reedify'd by the Cardinal Wolsey then Arch-bishop of York as by the Arms remaining in wood stone and glass in sundry places of that house may appear And after the said Cardinals conviction of Premunire and Death the same was made parcel of the King's Palace at Westminster by purchase from the Arch-bishop of York as appeareth by the Stat. of 28. Hen. VIII ca. 12. But afterwards until anno 2. or 3. of Queen Mary the Arch-bishop of York had no other dwelling-place near London in right of his See or by reason of his Arch-bishoprick but the house at Battersey and then Queen Mary gave to Arch-bishop Heath and his Successors the late Duke of Suffolk's house called Suffolk-place in Southwark which the Arch-bishop of York by confirmation of the Dean and Chapter there shortly after sold away to others and purchased to his See York-place where the Lord Chancellor remaineth together with the houses adjoining to the Street Which house was sometime the Bishop of Norwich's Place and the same among all or the greatest part of the possessions of the See of Norwich about an 27. Hen. VIII were convey'd to the King by a private Act of Parliament in recompence of the union of the Monastery of St. Bennets and the possessions thereof to that Bishoprick being of far better value than the ancient Lands of the Bishoprick of Norwich assur'd to the King as is recited in the Statute of 32. Hen. VIII ca. 47. whereby the Bishop of Norwich is made Collector of the Tenths of his Diocess as other Bishops were being formerly free'd thereof by the said private Statute of 27. Hen. VIII Which said now York-place by Hen. VIII was convey'd in fee to Charles Brandon Duke of Suffolk and after the death of the said Duke's sons the coheirs of the Duke's sons sold the same to the said Arch-bishop Heath and his Successors 6. But the Bishop of NORWICH was limited by the said private Act of 27. Henry VIII to enjoy perpetually in succession a Prebend in the Free-Chappel of St. Stephens at Westminster after dissolv'd by the Statute of Dissolution of Colledges and Free-Chappels 1. Ed. VI. and the house thereto belonging in Chanon-row whereof then was incumbent one Knight but the house is said to be Leas'd for some small Rent by the Bishop of Norwich to Sir John Thinn Knight in Edw. the Sixth's time for many years enduring And that the house now call'd York-place was belonging to the Bishop of Norwich is proved by a Case 21. Edw. IV. fol. 73. in a Presentment against the Bishop of Norwich in the King's Bench for annoyance of a way inter hospitium Episcopi Norwicensis Dunelmensis in parochia Sancti Martini in Campis 7. DURHAM-HOUSE as appeareth in that Case was the Bishop of Durham's house and Bishop Tonstal about the 26 th of Hen. VIII convey'd the same to the King in Fee and King Henry VIII in recompence thereof granted to the See of Durham Coldharborrowe and certain other houses in London And after Edw. VI. about an 2. granted Durham-house to the Lady Elizabeth his Sister for life or until she be otherwise advanced After the Bishoprick of Durham by a private Statute not printed of 7. Edw. VI. was dissolved and all the possessions thereof given to King Edw. VI. who shortly after convey'd in Fee the said Bishop's late house at Coldharborrowe and other houses in London to Francis Earl of Shrewsbury and his heirs And after the 2d. Mariae ca. 3. The Stat. of 7. Edw. VI. for dissolving that Bishoprick is repeal'd but the Mansion-house of Coldharborrowe and other Tenements in London so granted to the said Earl be confirm'd And the Bishop by that Act prayeth a recompence from the Queen at his charge Whereupon Queen Mary about anno V. or VI. of her reign granteth to the said Bishop of Durham her reversion of Durham-place in succession which coming into possession by the death of Queen Elizabeth the late Bishop of Durham now Lord Arch-bishop of York enter'd into and enjoy'd the same in the right of his See by opinion of the chief Justices of the Land referr'd by the King being opposed by Sir Walter Rawleigh as likewise doth the now Bishop of Durham 8. The Bishop of LICHFEILD and COVENTRY of old call'd the Bishop of Chester before the new erection of the new Bishoprick of Chester had his Place where Somerset-house is builded 9. 10. As likewise the Bishops of WORCESTER and LANDAFF had there sometime a house as Stow in his Book of Survey of London saith But the said three Bishops Places together with a Parish Church call'd Straunde-Church and the greatest Inn of Chancery call'd Straunde-Inn belonging to the Middle Temple were defaced without recompence to any of the said three last mentioned Bishops Parish Church or Inn of Chancery Other than to the Bishop of WORCESTER who had in respect of his former house a house in the White Fryers which he enjoyeth 11. Arondell-house now the Lord Admiral 's was the Bishop of BATH and WELLS'S and was assured in Edw. VI. time to Admiral Seymer and is now quite sever'd from that Bishoprick without recompence 12. Likewise the Bishop of EXETER'S Place after call'd Paget Leicester and Essex-house of the several Owners of the same And it is thought the Bishop of Exeter hath likewise no recompence for the same of any other house in or near London 13. The Bishop of SARUM'S Place now call'd Dorset-house before call'd Sackvile-house and of former time Salisbury Court being in long Lease made by Bishop Capon who was Bishop there in Hen. VIII Edw. VI. and Queen Mary's time was exchang'd temp Reginae Elizabethae by the great Learned Reverend Father Bishop Jewel for recompence of good value in Lands in his Diocess or elsewhere in the West Country 14. The Bishop of St. DAVID'S Place was near adjoyning to Bridewell upon the ditch that runneth to Fleet-bridge into the Thames and was granted in Fee-farm for a Mark Rent temp Edw. VI. to Dr. Hewick the Physician under which purchase the same is now enjoy'd 15. The Bishop of HEREFORD'S Place as Stow in his Survey of London pag. 357. saith is in the Parish of St. Mary de Monte alto or Mount-halt in London of which Bishops Patronage the said Church also is which Place is in the tenure of the Bishop of Hereford or his Tenants 16. 17. The Bishop of LONDON'S Place at Pauls was never sever'd from the Bishop's possession And likewise ELY Place from the Bishop of that See other than such part thereof as the late Lord Chancellor Hatton had by Lease for many years from the late Bishop Cox 18. The Bishop of BANGOR'S house is or lately was Mr. Aleworth's house