the Clergy No man shall be appealed by a Woman for the death of any but her own Husband The right of Appeal is grounded upon the greatest interest Now because the Wives interest seemeth wholly to be swallowed up in her Husband therefore she shall have an Appeal of the death of him onely and such also was the Law in Glanvil's time How far this point of interest shall extend to the degrees of Consanguinity the Norman Law formerly hath shewn And against whom Appeals did lie the Statute at Westminister tells us viz. not onely against the principal but also against accessories yet not against them till the principal be attainted And because it was ordinary for men of nought to appeal others in a malicious way it was by another Law established that if the party appealed was acquitted the appealor should not onely render damages but be imprisoned for a year The County-Court shall be holden at the wonted time The Torn shall be holden at the accustomed place twice in the year viz. after Easter and Michaelmas The view of Frank-pledges shall be holden at Michaelmas The Sheriff shall not extort The Sheriff's Courts had now lost somewhat of their Jurisdiction though for time and place they are confirmed statu quo to the end that through uncertainty thereof the suiter might not make defaults and be amerced Yet they lost much of their respect within the compass of these few years by two Laws the one of which made at Merton allowed all suiters to the rural Courts to appear by Proxie or Atturney which it seemeth had power to vote for the Masters in all cases publick and private and did not onely themselves grow into parties and maintenance of Quarrels and so spoiled these Courts of their common Justice but rendred the Freemen ignorant and careless of the common good of the Country and given over to their own private interest And though the corruption of Justice was soon felt and against it a Law was provided viz. That the Sheriff should not allow of such corrupt Attorneys yet this was no cure to the Freemen who were still suffered to wax wanton at home albeit that they were discharged from doing their suit in all other Hundreds but that wherein they dwell The second Law that took away much honour from these Courts was that Law at Marlbridge that discharged the Baronage of England and the Clergie from their attendance at such service and this also opened the door wider to oppression For where greatness is it carrieth therewith honour from the meaner sort and a kind of awe and stop unto the minds of such men that otherwise would riot without restraint and though it might also be said that the pretence of great men in such Courts would oversway the meaner and make strong parties yet it must also be acknowledged that these parties being greater are the fewer and do not so generally corrupt all sorts as the corruption of the meaner sort do It is said by the wise man Where the poor oppress the poor it is like a raging rain that leaves no food The last branch in this Law is an inhibition to the Sheriff from extortion and surely there was great need and much more need than ever now that the Lords and Clergy are absent It was thought that the great occasion of the Sheriff's oppression was from above I mean from the King that raised the values of the Farm of Counties granted to the Sheriffs for in those days Sheriffs gave no accounts as of later times they have done and therefore the Charter of King John between the 17th and 18th Chap. inserteth this Clause Omnes Comitat. Hundred Wapentag Trethingi sint ad antiquas firmas absque ullo incremento exceptis Dominicis Maneriis nostris But this did not work the work although it took away occasion for the humour was fed from within and turned to a sore upon that place that could never be cured to this day Nor could the wisdom of times find other help to keep the same from growing mortal but by scanting the dyet and taking away that power and jurisdiction which formerly it enjoyed The 37th Chapter hath been already noted in the Chapter of the Clergie next foregoing Escuage shall be taxed as was wont in the time of Henry the second The Charter of King John hath superadded hereunto this ensuing provision There shall be no Escuage set in the Kingdom except for the redeeming of the King's person making of his eldest Son a Knight and on marriage of his eldest Daughter and for this there shall be onely reasonable aid And in like manner shall the aids of the City of London be set And for the assessing of Escuage we will summon the Archbishops Bishops Abbots Earls and greater Barons of the Kingdom specially by our several Writs and will cause to be summoned in general by our Sheriffs and Bailiffs all other our Tenants in capite to be at a certain day after Forty days at the least and at a certain place and we will set down the cause in all our Writs And the matter at the day appointed shall proceed according to the counsel of those that shall be present although all that were summoned do not come And we will not allow any man to take aid of his Freemen unless for redemption of his body and making his eldest Son a Knight and on marriage for his eldest Daughter and this shall be a reasonable aid onely Thus far the Charter of King John concerning this point of Tax or Assessment and if the History saith true the Charter of Henry the Third was one and the same with that of King John then either this was not lest out in Henry the Third's Charter in that Historians time or if it was omitted in the original it was supposed to be included in the general words of the Law as being accustomed in times past And then these particulars will be emergent First that the Aids and Escuage in Henry the First 's time were assessed by the same way with that in this Charter of King John for that all the quarrel between the Lords and King John was concerning the Charter of Henry the first which the Lords sware to maintain Secondly that neither Aids nor Escuage were granted or legally taken but by Act of Parliament although the rate of them was setled by common custom according to the quantity of their Fee. Thirdly that some Parliaments in those times as concerning such matters consisted onely of such men as were concerned by way of such charge by reason of their Tenancy for Escuage onely concerned the Tenants by Knight-service and therefore those onely were summoned unto such Parliaments as onely concerned Escuage Nor had the City of London nor the Burgesses right to vote in such cases it is said p. 258. And thus the Forest-Laws that were made in the time of
of Edward the Sixth Queen Mary and Queen Elizabeth WE are at length come within sight of the shore where finding the Currents various and swift and the Waves rough I shall first make my course through them severally and then shall bring up the general Account of the Reigns of One King and Three Governours The King was a Youth of about Ten years old yet was older than he seemed by Eleven years for he had all the Ammunition of a wise King and in one respect beyond all his Predecessors that made him King indeed By the Grace of God. He was the onely Son of Henry the Eighth yet that was not all his Title he being the first President in the point of a young Son and two elder Daughters by several venters the eldest of whom was now thirty years old able enough to settle the Government of a distracted Nation and the Son so young as by an Act of Parliament he was disabled to settle any Government at all till he should pass the Fifteenth year of his Reign But the thing was setled in the life-time of his Father whose last Will though it speak the choce yet the Parliament made the Election and declared it The condition of this King's Person was every way tender born and sustained by extraordinary means which could never make his days many or Reign long His spirit was soft and tractable a dangerous temper in an ill air but being fixed by a higher principle than nature yielded him and the same beautified with excellent endowments of Nature and Arts and Tongues he out-went all the Kings in his time of the Christian world His Predecessors provided Apparel and Victual to this Nation but he Education and thereby fitted it to overcome a fiery Trial which soon followed his departure The Model of his Government was as tender as himself scarce induring to see his Funeral ready for every change subject to tumults and Rebellions an old trick that ever attends the beginning of Reformation like the Wind the Sun-rising The diversity of Interests in the Great men especially in point of Religion for the most part first set these into motion for some of them had been so long maintained by the Romish Law that they could never endure the Gospel and yet the different Interests in matters of State made the greater noise All was under a protector fitly composed to the Kings mind but ill matched with rugged humorous aspiring minds whereof one that should have been the Protectors great Friend became his fatal Enemy and though he were his Brother to prejudice his Interest pawned his own blood The other which was the Duke of Northumberland had his will but missed his end for having removed the Protector out of the way and gotten the chief power about the King yet could he not hold long what he had gotten for the King himself after Sixteen months decaying went into another world and left the Duke to stand or fall before some other Power which came to pass upon the entry of the next Successor The greatest trouble of his Government arose from the prosecution of a design of his Grandfather Henry the Seventh for the uniting of the two Crowns of England and Scotland by marriage and setling an enduring Peace within this Isle and unto this Work all were Aiders in both Nations but the Enemies of both But God's ways are not as Man 's it is a rare Example to find out one Marriage that did ever thrive to this end England meaned well in proffering Love but the Wooing was ill-favouredly carried on by so much Bloud Lastly As the Government was now tender so was it carried with much compliance with the People which ever gives occasion to such of them that are irregular to be more and such as are well governed to be less because though pleasing it be yet it is with less awe and spirit which renders their obedience at the best but careless and idle unless such as are very consciencious be the more careful over their own ways by how much their Superiours are the less NOT thus was Queen Mary but like a Spaniard she over-ruled all Relations and Engagements by Design she was about Forty years old and yet unmarried when she came to the Throne it may seem she wanted a mind to that course of life from natural abstinency or was loath to adventure her Feature which was not excellent to the Censure of any Prince of as high degree as she held her self to be or her value was not known so as to persons of meaner Interests she might seem too much above and to those of greater too much beneath Or possibly her Father was loath to let the world know her Title to the Crown till needs must or to raise up a Title for another man so long as he had hope of a Son of his own to succeed him and yet had formerly designed her for a Wife to Charles the Fifth and afterwards to the Dauphine of France Or it may be her self had set a command of her self not to change her Estate till she saw the course of the Crown either to or fro However the time is now come that she must marry or adventure her Womanhood upon an uncertain and troublesome state of Affairs She liked the Lord Courtnee above the Prince of Spain but feared he would not design with her She held him not unmeet for her degree for she feared he was good enough for her Sister that then also had the Title of a Kingdom waiting so nigh her person as she was an Object of Hope to her Friends and Fear to her Enemies And yet Queen Mary married the Prince of Spain It may be it ran in the Bloud to marry into their own Bloud or rather she was thereto led by reason of State partly to enable her with greater security in the resetling of her Kingdom in the Popish Religion wherein she knew she had to do with a People not easie to be reduced where Conscience pretended Reluctancy and partly to assure her Dominion against the Out-works of the French and Scotish designs And so she yielded up the Supremacy of her Person to the Prince of Spain but thanks to the Nobility the Supremacy of the Kingdom was reserved to her own use for it was once in her purpose to have given up all to the man rather than to miss of the man. And yet their condition was not much comfortable to either The Peoples dislike of the Match sounded so loud abroad that when the Prince was to come over the Emperour his Father demanded fifty Pledges for his Sons safety during his abode in this Land which was also denied When he was come over the English fear the Spanish Tyranny and the Spanish the old Saxon entertainment of the Danes So both lie at their close guards as after some time the King and Queen did no less for the Queen was either never earnest in her
Hundred was amerced for the escape but if the party slain were known to be of English Parents it was otherwise This custom lasted long after the Normans time the Dane being only changed into the Norman and was called Englishire Batteries Maimes Imprisonments and other breaches of peace were punished by Fine which they called Fightwitt Grithbrece or Frithbreck and the Delinquent ordinarily put in sureties for the peace for future time The fine was increased by the number of Delinquents joyning in the fact for if seven joyned it was a Riot and the fine was then called Flothbote If the number were five times so many viz. thirty and five then it was a Rebellion or War. Secondly the fine was increased by the time or season of the fact as in Lent or while the Army was in the field because in the first case the holy time was prophaned in the second the Countrey was more endangered when the strength was abroad and the Army might be discouraged at the news of the disturbance at home And therefore the Saxons punished this with death or fine suitable Thirdly the fine was the greater in case of the excellency of the place where it was holy ground or in the presence of great persons such as the King or Bishop Adultery among the old Germans was holden a crime of a high nature the penalty of the woman that committed that crime was death I find not what became of the man. In latter times of the Saxons it grew less penal and more common By Alfreds Law it was finable and the fine called Legierwit By Canutus the man was fined or banished the woman to lose her nose ears and her portion Incest was more penal to the man than Adultery and yet it touched not his life Robbery amongst the Lacedemonians was accounted but a trick of youth the Athenians thoughts were more severe The Germans likewise differed in their censures concerning it the Saxons punished it with death but the Angles with fine only yet Ina the King made it mortal and Canutus followed him therein and Edward the Confessor limited that punishment to thefts of twelve pence in value or above Burning of woods was finable by Ina's Law but Burglary was Felony In King Edmunds time only the Danes made it finable possibly being guilty in their own Consciences of their own propensity to rapine and plunderings This priviledge of the dwelling-house was anciently called Hamsoca or Hamsoken or Hamsokne Trespasses committed upon ground were all comprehended under the general name of Ederbrece or hedge-breaking and the penalty was not only the damage to the party but also fine to the King upon Action which in these days passeth under the name of Quare clausum fregit according to the words of the Writ The damages were more or less according to the time or season when it was done for it when the Army was abroad the damages were doubled and in like manner if done in Lent time If the trespass was done by a Beast the owner must pay the damages but if it were occasioned through the complainants default as through his gap no damages were paid The constant fine to the King in all such trespasses was by Alfreds Law set at five shillings Other Actions also were then used as touching damage done to Goods and Actions upon the case for in Alfreds time the Plaintiff recovered not only damages for trespasses done to Possessions and Goods but also costs for injuries in point of scandal and defamation in case the complainant specially declareth that he is thereby disabled or indamaged in his preferment and maketh proof of the same suitable unto the forms of our pleadings at this day which conclude with per quod c. or deterioratus est c. The Saxons were utter enemies to Perjury they punished it with eternal discredit of testimony and sometimes with banishment or with grievous fines to the King and mulcts to the Judge For that difference I find observed in those days between fines and mulcts albeit the more ancient times used them for one and the same for so the Historian pars mulctae Regi In all these matters where any interest was vested in the Crown the King had the prerogative of pardon yet always the recompence to the party was saved besides the security of the good behaviour for time to come as the case required CHAP. XLI Of the Laws of Property of Lands and Goods and their manner of Conveyance THus passing over some tops of Saxon penal-Laws besides the general rule or Law of eye for eye tooth for tooth c. it now remains as lightly to glance at a few generals concerning the setling and property of possessions in point of Title concerning which although it be true that the Conquerors of this part of the Isle were a body aggregate of many Nations or peoples and so divers customs must necessarily settle by common intendment in several places according as they chose their habitation yet the general custom of the Germans as touching descent of inheritance was to the eldest Son. For Tacitus speaking of the German Cavalry saith That the Horse of the party dead went not to the eldest Son ut caetera but to the most valiant man amongst them of that Linage which words ut caetera do plainly intimate that other matters of profit passed to the eldest Son in point of descent Nor can I conceive how men should be induced to conceit that the custom of Gavelkind was the ancient general custom of the Germans It is true the words of the same Historian have misled some the words are Haeredes tamen successores cuique liberi these taken collectively I grant may import somewhat tending that way but they may as properly be taken disjunctively that the Children inherit by course and if none such were then the Brothers if they failed then uncles And it is not only evident that in the publick Succession to the Crown they had an eye this way but in the descent of private and particular estates as by many instances out of those old Histories may appear and had any other custom been general Alfreds rule by Moses Law had never succeeded nor could that other custom hold out against the constant desire of the Saxons to perpetuate their Families in greatness and honour all which besides the express Laws set forth in the Codes are in my conceit sufficient to induce an Historical Faith That the general course of descent was to the eldest Sons and not to all joyntly Nevertheless out of this Estate of Inheritance divers particular estates were created as well by common custom as by the especial act of the owner of such an estate Such of them as were wrought by custom was occasioned from Marriage whereby if the man was setled of such estate
the antiquity hereof that I have met with than the name it self which importeth that it sprang up whiles as yet the names of Angles and Saxons held in common cognizance and might arise first from the grant of the Lords to their Tenants and so by continuance become usual And by this means also might arise the custom of Copy-holds of this nature so frequent especially in those Eastern parts of this Island where the Angles setled and from whom that part had the name of the East Angles Another custom of descent remaineth and that is to the Children indifferently and it is called Gavel-kind or Gave-all kind and by the very name seemeth at the first to arise rather from the donation of the Parent or other Ancestor contrary to common custom than by common Law otherwise no need had been of an especial name In the Original it seems it equally concerned all both Sons and Daughters as partners and for want of such the Brothers and Sisters It seemeth to be first the Law of the Goths or Jutes for it remaineth in use in these parts of the Eastern Countries But in latter times this estate was also tailed or cut out sometimes to the Sons and Daughters severally that is the Sons or Brothers to have two parts and the Daughters or Sisters one part othertimes to all the Sons and for want of such to all the Daughters And thus these courses of estates passed over Seas to the Southern part of this Island where that people most setled in a double stream the first from the Athenians that loved the stateliness of their Families the other from the Lacedemonians who desired rather the continuance of their Families than their greatness The manner of conveying of Estates between party and party was either by act of the party executed in his life-time or after his death Such as were executed in the life-time of the owner and were such as for the most part were in matters of great moment were Estates passing by deed of Conveyance in writing And for this way the Saxons were beholding to the Latines who taught them that course both for form and language And Alfred enforced by a particular Law viz. That all such as hold Lands by Deed in Writing should hold them according to the intent thereof and not alien the same contrary thereunto the intent thereof being proved by the Witnesses The nature of the Conveyances in these ancient times may appear by a Deed of one of the Kings of this Island about 400 years before the Conquest whereby he granted Four Plough-lands in the Isle of Thanet unto an Abbess wherein instead of that which we now call the habendum the words are contulimus possidendum c. and after that followeth the uses of the Deed tuo usui c. and then concludes with a Warranty in these words tu vero successoresque tui defendant in perpetuum nunquam me haeredesque meos contra hanc chartulam aliquando esse venturos the effect of which last clause may appear by the Law of the sale of Goods which in those times was that if the sale of Goods warranted did not hold the loss should light upon the sellers The Deeds were usually subscribed with the name of him that made the Conveyance or passed the Estate and if he could not write his name as it befel often then the Deed was under-signed with his mark For Withered King of Kent used the sign of the Cross in subscribing his Grants pro ignorantia literarum They used also in those days to seal their Deeds for so much the conclusion of King Ina's Charter to the Abbey of Glastenbury importeth in words to this effect in English I Ina the King do confirm this Grant and Liberty by subscription of my own hand and under the seal of the holy Cross. True it is Ingulphus tells us that Seals to Deeds were of Norman original I believe his intent is concerning Seals of Wax annexed or affixed unto Deeds Lastly in those days also they used to attest their Deeds by subscribing the names of such as were present who being of greater or meaner rank rendred the credit of the Deed accordingly more or less valuable and upon this ground did the acknowledging or proving of Deeds before the King Bishop County or Hundred first arise That was the Roman fashion but the more ancient German way of Conveyance was by Livery and Seisin as most suitable to their ignorance who had Learning in as slight account as the Lacedemonians had and cared for no more than would serve the turn of natural necessity A property they had both in Lands and Goods and where that resteth no man can deny them the natural way of giving and receiving by delivery And therefore though matters of ordinary use seldom come into the observation of story and this petty ceremony might very well pass sub silentio yet we are not altogether left destitute of the footsteeps thereof in antiquity For Aethbald the Mercian King above Eight hundred years ago gave the Monastery of Cutham with all the Lands thereunto appertaining to Christ-Church in Canterbury and for the confirmation thereof commanded a clod of earth with all the Writings to be laid upon the Altar Another monument hereof more ancient by the space of above an hundred years we find in that Grant of Withered King of Kent of four Plough-lands in the Isle of Thanet the latter part whereof this Clause concludes thus Ad cujus cumulum affirmationis cespitem hujus supradictae terrae super sanctum altare posui Every man had liberty to execute the Law of his Inheritance in his life-time but some were surprized with sudden occasions and unexpected issues and ends and in such cases they did what they could to declare their intents by last Will which by common intendment being in writing hath occasioned some to think that the Saxons in their original had no use thereof being as they conceived so illiterate as not to have the use of writing But the Character remaining to this day evinceth the contrary nor can those words of Tacitus Et nullum est testamentum in any rational way be expounded in this sence if we consider the Context which runneth thus Haeredes successores cuique liberi nullum est testamentum Which in my opinion founds in this sence The Heirs and Successours to every one are his Children and there is no testamentary power to disherit or alter the course of Descent which by Custom or Law is setled Otherwise to deny them the use of all testamentary power was a matter quite abhorring the custom of all the Grecians from whom they learned all that they had Nevertheless the Saxons had not been long acquainted with the Romanists but they had gotten that trick of theirs also of disheriting by last Will as by the testament of Aethelwolf and others
shew a kind of rage and some rashness it might be imputed to the common infirmity of great men for as Oppression upon those that are inferiour makes them mad so doth Treachery against them that are superiour make them little other especially if they be overtaken with a fit of passion in the instant or their minds wrapped into a whirlpool of affairs But the change of Laws makes the greater noise wherein what change they suffered may appear from the premises if Writers have dealt uprightly otherwise general imputations without particular instances will never sway Opinion contrary to the current of the Laws that are published especially seeing we have observed the errour of the best Historian of those times in calling those things new which were anciently used in England before Normandy was in a condition of a State. Yet if this should be granted and that there were such change of Laws as is pretended it makes nothing to the point of Conquest so long as the new Laws are made by advice of Common-council and for the common good and so long as they are established to be Rules for Government I remember it is affirmed by some of those ancient Writers That the Duke or King would have brought in the Customs of Norway but the earnest Mediation of the English prevailed against it and this evinceth two things to my opinion First that there was question made what Law should be established Secondly that notwithstanding the interest that the Normans had in the Kingdom they could not prevail to bring in the whole body of their Law or of the Customs of Norway which were not onely the prima materia of their Law but also in kind had a setling at that very time in those places of this Kingdom where the Danes had their principal seat and therefore not altogether strange to the Saxons themselves The sum of which will be this That upon debate a Law must be setled and that not the Law of the Conquerour's own Will nor the Law that suits with his Desire but the ancient Law of the Kingdom And therefore if at any time the unquietness of some of the English brought the King to some thoughts of Arbitrary Rule and to shake off the clog of the Saxon Law it was long e're it stirred and sprang up too late to raise the Title of Conquest and withered too soon to settle it As touching the change of Customs for that also is imputed to the Conquerour it cannot be denied but some alteration might be in matters of smaller consideration yet are the Writers not without mistake in the particular instances For whereas they tell us that the Conquerour took away the custom of Gavel-kind and brought the custom of discent to the eldest Son and that Kent saved their Liberties and continued this custom of Gavel-kind I shall not contend about the Liberties of Kent but must till I see better reason hold the opinion of the change of Inheritance to be a meer conceit For besides what hath been already said concerning that custom of Gavel kind if we believe Glanvil the difference was between Lands holden by Knight's-service and in Socage the first of which in his time by ancient custom always descended to the eldest and those Lands that were holden in Socage if not partible by custom in which case they went equally to all the Sons went by custom in some places to the eldest in other places to the youngest so as the Rule of Inheritance in the Norman times was custom as well as in former times And furthermore if the custom of Gavel-kind had been the general custom of this Nation the King by his change had contradicted his own Prerogative and granted as great a Liberty to his Subjects as could have been invented For had the custom of Gavel-kind happened upon the Lands in Knight-service it had brought all the Sons under the Law of Wardship and had made a ready way to enthral all men of Worth and undo all Husbandry the first whereof had been as advantageous to the King 's private interest as both destructive to the publick Nor is it clear from any Author of credit that the Normans changed the Tenures of Lands albeit that it cannot be denied but such Lands as he had by forfeiture or otherwise were in his own power to dispose upon what Tenure he pleased for as well before the Normans time as long after Tenures were like as the Services were all at the Will of the Donor and were of as many Individuals almost as the minds of the Owners Some being of more general regard and publick use are recorded amongst the grounds of English Laws none of which appear to me to be of Norman original although they received their names according to that Dialect The next thing objected is the change of Language which thing some Writers tell us the King endeavoured or which is worse to be so absolute as to be absolute Tyrant and to publish Laws in a foreign Language that the people through ignorance might the rather transgress and thereby forfeit their Estates This if true so sar differed from the nature of a Conquerour as rather proveth that he was put to his shifts Nevertheless the thing tasteth so much of Spleen as it might occasion distrust of other relations concerning this subject For besides that it is nonsence for a Conqueror to entitle himself by a cheat where he hath an elder Title by Conquest I shall in full answer to that calumny insert a passage of an Historian that was in the continual view of publick affairs in those times who speaking of the Conqueror saith That he commended the Confessor's Laws to his Justices in the same Language wherein they were wont formerly to be written lest through ignorance the people might rashly offend And another Author saith That the King had a desire to learn the English Tongue that he might the better know their Law and judge according thereto It is probable nevertheless that the Laws were in the Norman Tongue and it is no less likely that the Pleadings in real Actions especially were also in the same Language else must the Normans be put to School to learn English upon peril of loss of their Estates But that either the written Laws were wholly concluded into the Norman Tongue or that the publick pleading of Causes by word of mouth in all Actions where the issue was left to the Country were in any other Language than English no advised Reader will conceive seeing it had been a madness for an English Jury to pass their Verdict in any case wherein it is likely many of them understood scarce a syllable of the Norman Language much less ought of the matter upon which their Verdict should be grounded Adde hereunto that it is not likely but the Conquerour inhibited the use of the English Language in all matters of publick Record inasmuch as the Charters made by him to corporate Towns and
saith That he will set down frequentius usitata and it is past question but that the tryal by twelve men was much more ancient as hath been already noted One thing more yet remaineth concerning the Widow of the Tenant whose Dower is not onely provided for but her reasonable part of her Husband 's personal Estate The original hereof was from the Normans and it was as popular as that of Wardships was Regal and so they made the English women as sure to them as they were sure of their Children The Justices shall by Assize try Disseisins done since the King 's coming over Sea next after the peace made between him and his Son. This is called the Assize of Novel disseisin or of disseisins lately made It seems that the limitation was set for the Justices sake who now were appointed to that work which formerly belonged to the County-courts and to prevent intrenchments of Courts a limitation was determined although the copy seemeth to be mistaken for the limitation in the Writ is from the King 's last Voyage or going into Normandy Justices shall do right upon the King 's Writ for half a Knights Fee and under unless in cases of difficulty which are to be referred to the King. The Justices itinerant ended the smaller matters in their Circuits the other were reserved to the King in his Bench. Justices shall enquire of Escheats Lands Churches and Women in the King's gift And of Castle-guard who how much and where So as the Judges itinerant had the work of Escheators and made their Circuits serve as well for the King's profit as justice to the Subjects They used also to take Fealty of the people to the King at one certain time of the year and to demand Homage also These matters of the King's Exchequer made the presence of the Judges less acceptable and it may be occasioned some kind of oppression And as touching Castle-guard it was a Tenure in great use in these bloody times and yet it seemeth they used to take Rent instead of the personal service else had that enquiry how much been improper Of a Tenants holding and of several Lords That one man may hold several Lands of several Lords and so owe service to them all is so common as nothing can be more nevertheless it will not be altogether out of the way to touch somewhat upon the nature of this mutual relation between Lord and Tenant in general that the true nature of the diversity may more fully appear The foundation or subject of service was a piece of Land or other Tenement at the first given by the Lord to the Tenant in affirmance of a stipulation between them presupposed by the giving and receiving whereof the Tenant undertook to peform service to the Lord and the Lord undertook protection of the Tenant in his right to that Tenement The service was first by service solemnly bound either by Oath which the Lord or his Deputy by the Common-Law hath power to administer as in the case of Fealty in which the Tenant bound himself to be true to the honour and safety of his Lords person and to perform the service due to the Lord for the Tenement so given or otherwise by the Tenants humble acknowledgment and promise not only to perform the services due but even to be devoted to the Lords service to honour him and to adventure limb and life and be true and faithful to the Lord. This is called Homage from those words I become your man Sir and yet promiseth upon the matter no more but fealty in a deeper complement albeit there be difference in the adjuncts belonging to eách For though it be true that by promise of being the Lord's man a general service may seem to be implied yet in regard that it is upon occasion only of that present Tenure it seemeth to me that it is to be restrained only to those particular services which belong to that Tenement and therefore if that Tenement be holden in Socage although the Tenant be bound to homage yet that homage ties not the Tenant to the service of a Knight nor contrarily doth the homage of a Tenant in Knight-service tie him to that of Socage upon the command of his Lord though he professeth himself to be his man. Nor doth the Tenant's homage bind him against all men nor ad semper for in case he holdeth of two or divers Lords by homage for several Tenements and these two Lords be in War one against the other the Tenant must serve his chief Lord of whom the Capital house is holden or that Lord which was his by priority who may be called the chief Lord because having first received homage he received it absolutely from his Tenant with a saving of the Tenant's Faith made to other Lords and to the King who in order to the publick had power to command a Tenant into War against his own Lord. If therefore he be commanded by the King in such cases unto War he need not question the point of forfeiture but if he be commanded by a chief of his other Lords into War against a party in which another of his Lords is engaged his safest way is to enter upon the work because of his Allegiance to that Lord yet with a salvo of his fealty to that other Lord. But in all ordinary cases Tenants and Lords must have regard to their stipulation for otherwise if either break the other is discharged for ever and if the fault be in the Tenant his Tenement escheats to his Lord and if the Lord fail he loses his Tenure and the Tenant might thenceforth disclaim and hold over for ever Nevertheless the Lords had two Priviledges by common custom belonging to their Tenures which although not mentioned in the stipulation were yet more valuable than all the rest the one concerning matter of profit the other of power That of profit consisted in aids and relief The aids were of three kinds one to make the Lords eldest Son Knight the other to marry his eldest Daughter the third to help him to pay a relief to his Lord Paramount which in my opinion sounds as much as if the Tenants were bound by their Tenures to aid their Lord in all cases of extraordinary charge saving that the Lord could not distrain his Tenant for aid to his War and this according to the Lords discretion for Glanvil saith that the Law determined nothing concerning the quantity or value of these aids These were the Norman ways and savoured so much of Lordship that within that age they were regulated But that of reliefs was an ancient sacrifice as of first-fruits of the Tenement to the Lord in memorial of the first Lords favour in conferring that Tenement and it was first setled in the Saxons time The Lords Priviledge of power extended so far as to distrain his Tenants into his own Court to answer to himself in all causes that concerned his
are to be ordered by Tutors than Children and therefore this may be annexed to the rest of the Liberties as well as the other Nevertheless it seemeth that the Laws took them into their regard in respect of their Estates which might be abused to the prejudice of the Publick rather than out of any respect had to their persons Now because there is a difference between the disability of these persons the one being perpetual the other temporary therefore is there also by these Laws a difference in the disposal of their Estates for the Tutor had a right in the disposing of the one and but a bare authority or power in providing for the other Secondly the person of the Tutor is to be considered Anciently it was the next kindred grounded as I conceive upon the natural affection going along with the blood and this so continued in custom until these times for though the Mirrour of Justice saith that Henry the First brought in that course of giving the custody of these disabled persons to the King as hath been formerly observed yet Bracton that wrote long after the time of Henry the First speaking of these kind of persons saith Talibus de necessitate dandus est tutor vel curator not so much as mentioning the King in the case And in another place speaking of such as are alieni juris saith that some are under the custody of their Lords and others under their Parents and friends But let the time of the entrance of this Law be never so uncertain it is now a declared Law that the King in such cases is the common Curator or Tutor of all such persons as he is a Chief Justice rendring to every one his right The King shall have the Wrecks of the Sea. What shall be called a Wreck the Statute at West 1. declareth viz. Where the Ship so perisheth that nothing therein escapeth alive and these are rather in their original committed to the King as a Curator than given him as a Proprietor although that Custom hath since setled a kind of right which may perhaps be accounted rather a Title by Estoppel For the fundamental ground is that the right owner cannot be manifested and therefore the King shall hold it and if the right owner can be manifested the King shall hold it till the owner doth appear The Heir in Socage-tenure shall have an Action of Waste and an account against his Guardian for the profits of the Lands and Marriage The Heir in Socage being under age shall also be under custody of such Guardian of the next kinred who cannot challenge right of Inheritance in such Lands so holden as if the Lands descended from the Father's side the Mother or next of the kinred of the Mothers side shall have the custody and so if the Lands descend from the Mother the Father or next kinred of the Father's side shall have the custody And this custody bringeth with it an Authority or Power onely and no Right as in case of the Heir in Knight-service and therefore cannot be granted over as the Wardship in Knight-service might but the Guardian in Socage remaineth accomptant to the Heir for all profits both of Land and Marriage The full age of Tenant in Socage is such age wherein he is able to do that service which is Fourteen years for at such age he may be able by common repute to aid in Tillage of the ground which is his proper service But the Son of a Burgess hath no set time of full Age but at such time as he can tell Money and measure Cloath and such work as concerns that calling Widows deforced of their Dower of Quarentine shall by Action recover damages till they recover their Dower They shall also have power to devise their crop arising from her Dower It was used that the Heir should have the crop with the Land but this Statute altered that former usage and yet saved the Lord's liberty to distrain if any services were due Writs de consimili casu granted in cases that fall under the same Law and need the same remedy and such Writs shall be made by agreement of the Clerks in the Chancery and advice of such as are skilful in the Law. It was none of the meanest Liberties of the Freemen of England that no Writs did issue forth against them but such as were anciently in use and agreed upon in Parliament And it was no less a grievance and just cause of complaint that Kings used to send Writs of new impression to execute the dictates of their own wills and not of the Laws of the Kingdom as the complaints of the Clergy in the times of Henry the Third do witness Nevertheless because many mens cases befel not directly within the Letter of any Law for remedy and yet were very burthensome for want of remedy it is provided by this Law that such emergent cases that do fall within the inconvenience shall be comprehended within the remedy of that Law. Aid to make the Son of the Lord a Knight and to marry his eldest Daughter shall be assessed after the rate of twenty shillings for a Knights Fee and twenty shillings for twenty pounds in yearly value of Socage-tenure The uncertainties of Aids are by this Law reduced and setled as touching the sum and thereby delivered the people from much oppression which they suffered formerly Nor was onely the particular sum hereby but also the age of the Son when he was to be made a Knight viz. at the age of Fifteen years too soon for him to perform Knight-service but not too soon for the Lord to get his money And the Daughter likewise was allowed to be fit for Marriage at Seven years of age or at least to give her consent thereto albeit that in truth she was neither fit for the one or other and therefore it must be the Lords gain that made the Law and it was not amiss to have the aid beforehand though the marriage succeeded not for many years after and if the Lord died in the interim the Executors having Assets paid it or otherwise his Heir CHAP. LXVIII Of Courts and their Proceedings BEsides the Courts of Justices itinerant which were ancient as hath been said other Courts have been raised of later birth albeit even they also have been of ancient constitutions and divers of them itinerant also and some of them setled in one place The work of the Justices itinerant was universal comprehending both the matters of the Crown and Common-pleas That of Oyer and Terminer is onely of Crown-pleas originally commenced and enquired of by themselves and granted forth upon emergent crimes of important consequence that require speedy regard and reformation Justices of Gaol-delivery have a more large work that is to deliver the Gaols of all criminal offenders formerly indicted or before themselves Justices of Assize and Nisi prius are to have cognizance of Common-pleas onely and