that if the party appealed was acquitted the appealor should not onely render dammages but be imprisoned for a yeere The County court shall be holden at the wonted time cap. 36. The Torne shall be holden at the accustomed place twice in the yeere viz. after Easter and Michaelmas The view of Frank pledges shal be holden at Michalmas The Sheriffe shall not extort The Sheriffs 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 compasse of these few yeeres by two laws Merton cap. 10 the one of which made at Merton allowed all suiters to the rurall Courts to appeare by proxy or atturney which it seemeth had power to vote for the masters in all cases publique 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 carelesse of the common good of the Country and given over to their own private interest And though the corruption of justice was soon felt West 1. c. 33. and against it a law was provided viz. that the Sheriffe should not allow of such corrupt atturnies yet this was no cure to the free men who were still suffered to wax wanton at home albeit that they were discharged from doing their suite in all other Hundreds but that wherein they dwell Marlbr cap. 10. The second law that tooke away much honour from these Courts was that law at Marlbridge Ibid. that discharged the Baronage of England and the Clergy from their attendance at such service and this also opened the doore wider to oppression for where greatnesse is it carieth therewith honour from the meaner sort and a kinde of aw 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 doe not so generally corrupt all sorts as the corruption of the meaner sort doe it s said by the wise man where the poore oppresse the poore its like a raging raine that leaves no food The last branch in this Law is an inhibition to the Sheriffe from extortion and surely there was great need and much more need then ever now that the Lords and Clergy are absent It was thought that the great occasion of the Sheriffs oppression was from above I meane from the King that raised the vallews of the farme of Counties granted to the Sheriffs Artic. super cart cap. 13 14. Stat. de vice com An. 9 E. 2 for in those daies Shieriffs gave no accounts as of later times they have done and therefore the Charter of King Iohn between the 17 and 18 chapter inserteth this clause Omnes commitat Hundred Wapentag Trethingi sint ad antiquas firmas absque ullo incremento exceptis Dominicis Maneriis nostris But this did not worke the worke although it tooke 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 wisdome of times finde other helpe to keepe the same from growing mortall but by scanting the diet and taking away that power and jurisdiction which formerly it enjoyed cap. 37. The 37 Chapter hath been already noted in the Chapter of the Clergy next foregoing cap. 38. 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 Kingdome except for the redeeming of the Kings person making of his eldest sonne a Knight and one marriage of his eldest daughter and for this there shall be onely reasonable ayd And in like manner shall the ayds of the City of London be set And for the assessing of Escuage we will summon the Archbishops Bishops Abbots Earles and greater Barons of the Kingdome specially by our severall Writs and will cause to be summoned in generall by our Sheriffs and Bayliffs all other our tenants in capite to be at a certaine day after forty daies at the least and at a certaine place and we will set down the cause in all our Writs And the matter at the day appointed shall proceed according to the councell of those that shall be present although all that were summoned doe not come And we will not allow any man to take ayd of his free men unlesse for redemption of his body and making his eldest sonne a Knight and one marriage for his eldest daughter and this shall be a reasonable ayd onely Thus farre the Charter of King John concerning this point of taxe 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 left out in Henry the thirds Charter in that Historians time M. Paris or if it was omitted in the originall it was supposed to be included in the generall words of the Law as being accustomed in times past and then these particulars will be emergent First that the ayds and Escuage in Henry the firsts time were assessed by the same way with that in this Charter of King John for that all the quarrell between the Lords and King John was concerning the charter of Henry the first which the Lords sware to maintaine Secondly M Paris An. 1214 1215 25 Edw. 1. cap. 6. 34 Edw. 1. cap. 1. West 1. cap. 36. that neither ayds nor escuage were granted or legally taken but by Act of Parliament although the rate of them was setled by common custome 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 only concerned the tenants by Knights 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 Forrest laws that were made in the time of Ri. 1. were made by the consent of Archbishops Hoveden 445. Bishops Abbots Earls Barons and Knights of the whole Kingdome for what the great men gained they gained for themselves and their tenants And the truth is that in those times although publique dammage concerned all yet it was ordinary for Kings to make a shew of summoning Parliaments when as properly they were but Parliamentary meetings of some such Lords Clergy and others as the King saw most convenient to drive on his own designe and therefore
forefathers recepitque satisfactionem universa Domus Tacitus It would be too tedious to recite all the particular Laws with their changes and therefore they shall be left to the view in the severall Laws of Alfred Edmond Canutus and Edward the Saxon Kings Yet one custome first begun by the Danes Englishire Stamf. lib. 1. cap. 10. Miror cap. 1. Sec. 13. I cannot omit That if a man were found slain whose parents or friends were unknown by common intendment he was to be presumed to be a Dane and then if the delinquent were not taken nor fled to Sanctuary nor known where he is the whole Hundred was amerced for the escape Bracton lib. 3. tract 1. cap. 15 but if the party slain was known to be of English parents it was otherwise This custome lasted long after the Normans time the Dane being onely changed into the Norman Breach of peace Batteries Maimes Imprisonments Alured praes Lam. 19. 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 warre 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 Country 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 sutable Ll. Edw. c. 31. Ll. Sax. cap. 36. Ll. Inae cap. 6. 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 The seventh Commandement Adultery amongst the old Germans was holden a crime of a high nature the penalty of the woman that committed that crime was death I finde not what became of the man in latter times of the Saxons it grew lesse penall Baronus Anal. 745. num 5. Concil Brit. 558. Ll. Canut 50. reg 22. 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 eares and her portion Incest was more penall to the man then Adultery and yet it touched not his life Incest Ll. Sax. 48. reg 19. 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 eighth Commandement the Saxons punish it with death but the Angles with fine onely yet Ina the King made it mortall and Canutus followed him therein Lind Ll. Ang. Sax. Ll. Sax. 4. reg 3 Miror 262. Burning of woods Burglary Ll. Edm. cap. 6. Ll. Canut p. 59 Trespasses And Edward the Confessor limited that punishment to thefts of twelve pence in value or above burning of woods was fineable by Inaes law but Burglary was felony In King Edmunds time onely 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 generall name of Ederbrece or hedge-breaking and the penalty was not onely the dammage to the party but also fine to the King upon action which in these daies passeth under the name of Quare clausum fregit according to the words of the Writ Ll. Sax. cap. 36. The dammages were more or lesse according to the time or season when it was done for if when the Army was abroad the dammages were doubled and in like manner if done in Lent time If the trespasse was done by a beast the owner must pay the dammages Ll. Inae 56. Ibid. c. 40. But if it were occasioned through the complainants default as through his gap no dammages were paid The constant fine to the King in all such trespasses was by Alfreds law set at five shillings Ll. Sax. c. 36. Other actions also were then used as touching dammage done to goods and actions upon the case for in Alfreds time the Plantiff recovered not onely dammages for trespasses done to possessions and goods Miror p. 301. but also costs for injuries in point of scandall and defamation in case the complainant specially declareth that he is thereby disabled or indammaged in his preferment and maketh proofe of the same suitable unto the forms of our pleadings at this day The ninth Commandement which conclude with per quod c. or deterioratus est c. The Saxons were utter enemies to perjury they punished a Ll. Aethelst c. 10. with eternall discredit of testimony b Ll. Canut c. 6. and sometimes with banishment or with grievous fines to the King and mulcts to the Judge Spec. Sax. l. 3 art 53. For that difference I finde observed in those daies 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 alwaies the recompence to the party was saved Ll. Edw. c. 18. besides the security of the good behaviour for time to come as the case required CHAP. XLI Of the Lawes of property of Lands and goods and their manner of conveyance THus passing over some tops of Saxon penall 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 Miror cap. 5. Sec. 1. Concerning which although it be true that the conquerours of this part of the Isle were a body aggregate of many Nations or peoples and so divers customes must necessarily settle by common intendment in severall places according as they chose their habitation Inheritance yet the generall custome of the Germans as touching discent of inheritance was to the eldest sonne For Tacitus speaking of the German Cavalry saith that the horse of the party dead went not to the eldest sonne ut cetera but to the most valiant man amongst them of that linage which words ut cetera doe plainly intimate that other matters of profit passed to the eldest sonne in point of descent Nor can I conceive how men should be induced to conceit that the custome of Gavelkind was the ancient generall custome of
Ang. tit 6. Lindenbr as amongst the Angles it was a law that the inheritance should passe unto the issue males on the fathers side untill the fifth generation before any title could accrew to the issue female and then according to their Proverbe it went from the Lance to the Spindle But the Danes possibly might prevent this in the continuance thereof for they brought along with them that which was formerly the Saxon custome Ll. Sax. tit 7. ibid. Concil Brit. 333. which carried the inheritance unto the daughters upon the failing of the issue male as in the example of Cenedritha daughter to Cenulfus amongst multitudes of others may appeare Ll. Alured Sax. c. 7. But where Lands were conveyed by writing or act of the party it was a maxime that the will of the conveyor should be strictly observed nor could ever any one that came in by vertue of such writing ever alien the Land to crosse the currant of the originall conveyance The entailing of estates therefore was very ancient Plo. com 251. b. although by corrupt custome it was deluded as the Lord Dier in his argument of the L. Berklies case observeth Another custome of inheritance was catcht I know not how it s called Burrough English and by the name may seem to be brought in by some Cynicall odde Angle that meant to crosse the world and yet in a way not contrary to all reason for where nature affords least helpe the wisdome of men hath used to be most carefull of supply and thus the youngest became preferred before the elder in the course of descent of inheritance according to this custome There is no further monument of the antiquity hereof that I have met with then the name it selfe which importeth that it sprang up whiles as yet the names of Angles and Saxons held in comon cognisance might arise first from the grant of the Lords to their Tenants and so by continuance become usuall and by this means also might arise the custome of Copyholds 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 Gavel kind Another custome of descent remaineth and that is to the children collectively and it s called Gavell 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 custome then by common Law otherwise no need had been of an especiall name In the originall it seems it equally concerned all both sonnes and daughters as parceners and for want of such the brothers and sisters It seemeth to be first the Law of the Goths or Jutes Stephanus Dan. Burcus Suel for it remaineth in use in these parts of the Easterne Countries But in later times this estate was also tailed or cut out sometimes to the sonnes and daughters severally that is the sonnes or brothers to have two parts and the daughters or sisters one part other times to all the sonnes and for want of such to all the daughters and thus these courses of estates passed over Seas to the Southern parts of this Island where that people most setled in a double stream the first from the Athenians that loved the statelinesse of their families the other from the Lacedemonians who desired rather the continuance of their familes then their greatnesse Emmius Grec The manner of conveying of estates between party and party was either by act of the party executed in his life time Conveyances in writing or after his death such as were executed in the lifetime 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 Ll. Sax. cap. 37. both for form and language and Alfred inforced it 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 witnesses The nature of the conveyances in these ancient times may appear by a deed of the Kings of this Island about 400 yeeres before the Conquest whereby he granted foure plough lands in the Isle of Tenet unto an Abbesse wherin instead of that which we now call the habendum Habendum the words are contulimus possidendum c. after that followeth the uses of the deed tuo usui c. Vse and then concludes with a warranty 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 appeare by the Law of the sale of goods which in those times was that if the sale of goods warranted did not hold the losse should light upon the seller Ll. Inae c. 74. Ll. Sax. c. 24. Ll. Edw. c. 25. Signed 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 befell often then the Deed was under signed with his marke for Withered King of Kent used the signe of the Crosse in subscribing his grants pro ignorantia literarum They used also in those daies to seale their Deeds Sealed Concil Brit. p. 198. for so much the conclusion of King Ina's Charter to the Abby of Glastenbury importeth in words to this effect in English I Inas the King doe confirm this grant and liberty by subscription of my own hand and under the seale of the holy Crosse True it is Ingulfus tels us that seals to Deeds were of Norman originall I believe his intent is concerning seals of Wax anexed or affixed unto deeds Lastly Witnesses in those daies also they used to attest their Deeds by subscribing the names of such as were present who being of greater or meaner ranke rendred the credit of the Deed accordingly more or lesse valuable Acknowledgement and upon this ground did the acknowledging or proving of Deeds before the King Bishop County or Hundred first arise Livery and Seisin Cragius That was the Roman fashion but the more ancient German way of conveyance was by livery and seisin as most suteable to their ignorance who had learning in as sleight account as the Lacedemonians had and cared for no more then would serve the turn of naturall necessity A property they had both in Lands and goods and where that resteth no man can deny them the naturall way of giving and receiving by delivery And therefore though matters of ordinary use seldome come into the observation of story and this petty ceremony might very well passe sub silentio yet we are not altogether left destitute of the footsteps thereof in
rules for government I remember it s affirmed by some of those ancient Writers that the Duke or King would have brought in the customes of Norwey but the earnest mediation of the English prevailed against it and it 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 Kingdome they could not prevaile to bring in the whole body of their law or of the customes of Norwey 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 Kingdome where the Danes had their principall seate and therefore not altogether strange to the Saxons themselves The summe of which will be this that upon debate a law must be setled and that not the law of the Conquerours own will nor the law that suits with his desire but the ancient law of the Kingdome and therefore if at any time the unquietnesse of some of the English brought the King to some thoughts of arbitrary rule and to shake off the clog of Saxon law it was long ere 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 customes 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 tooke away the custome of Gavell kinde and brought the custome of discent to the eldest sonne and that Kent saved their liberties and continued this custome of Gavell kinde 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 meere conceit For besides what hath been already said concerning that custome of Gavell kind if we believe Glanvile the difference was between Lands holden by Knights service Lib. 7. cap. 3. and in socage the first of which in his time by ancient custome alwaies descended to the eldest and those Lands that were holden in Socage if not partible by custome in which case they went equally to all the sonnes went by custome in some places to the eldest in other places to the youngest so as the rule of inheritance in the Norman times was custome as well as in former times And furthermore if the custome of Gavell kind had been the generall custome 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 custome of Gavell kind happened upon the Lands in Knight service it had brought all the sonnes under the law of Wardship and had made a ready way to inthrall all men of worth and undoe all husbandry the first whereof had been as advantagious to the Kings private interest as both destructive to the publique Nor is it cleare from any Authour 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 generall regard and publique use Littlet are recorded amongst the grounds of English laws none of which appeare to me to be of Norman originall 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 forreigne language that the people through ignorance might the rather transgresse and thereby forfeit their estates This if true so far differed from the nature of a Conquerour as rather proveth that he was put to his shifts Neverthelesse 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 Conquerour to entitle himselfe 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 continuall view of publique affaires in those times who speaking of the Conquerour saith That he commended the Confessors laws to his Justices in the same Language wherein they were wonted formerly to be written Ingulfus lest through ignorance the people might rashly offend And another Authour saith M. Paris fragm Gulielm that the King had a desire to learn the English tongue that he might the better know their Law and judge according thereto It s probable neverthelesse that the laws were in the Norman tongue and it s no lesse likely that the pleadings in reall actions especially were also in the same Language else must the Normans be put to schoole to learne English upon perill of losse of their estates but that either the written laws were wholy concluded into the Norman Tongue or that the publique pleading of causes by word of mouth in all actions where the issue was left to the Countrey were in any other Language then English no advised Reader will conceive seeing it had been a madnesse for an English Jury to passe their verdict in any case wherein its likely many of them understood scarce a syllable of the Norman language much lesse ought of the matter upon which their verdict should be grounded Adde hereunto that it s not likely but the Conquerour inhibited the use of the English language in all matters of publique Record in as much as the Charters made by him to corporate Towns and Franchises were sometimes in the Saxon more generally in the Latine but seldome or never in the Norman dialect and that pleadings and indictments were entered in like manner in the Latine Tongue as formerly by an old custome brought in by the Clergy was used for the Clergy who had gotten the Key of knowledge and Law into their own custody layd it up in that Language whereof the Commons had little knowledge that they might thereby be enforced to depend upon these men for justice as well as for piety The Normans therefore either found it too hard to alter the former custome in such cases or else thought it the wisest way to choose the Latine as a third Language indifferent as well to the Normans as Saxons and best understood of any forreine Tongue besides and yet endeavoured to bring both peoples into one Language as they were intended to be one people and to presse the use of the Norman Tongue in publique affaires so farre as might consist with good government and justice leaving
this day hold the last in custome to all intents whatsoever The last branch provideth the remedy to recover to the heire his possession in case it be detained either through doubtfulnesse of age of the heire or his title and it directs the issue to be tried by twelve men This triall some have thought to be of Glanvils invention and it may well be that this triall of this matter as thus set down was directed by him yet he useth often in his booke the word solet and in his preface saith that he will set down frequentius usitata and its past question but that the triall by twelve men was much more ancient as hath been already noted One thing more yet remaineth concerning the widdow of the tenant whose dower is not onely provided for but her reasonable part of her husbands personall estate The originall hereof was from the Normans and it was as popular as that of Wardships was Regall 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 Kings 10. comming over Sea next after the peace made between him and his sonne 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 worke which formerly belonged to the County courts Glanv lib. 13. cap. 33. 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 Kings last voyage or going into Normandy Justices shall doe right upon the Kings writ for halfe a 11. Knights fee and under unlesse 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 inquire of Escheates Lands Churches and 12. women in the Kings gift And of Castle guard who how much and where So as the Judges itinerant had the worke of Escheators and made their circuits serve as well for the Kings profit as Justice to the subjects They used also to take fealty of the people to the King at one certaine time of the yeere and to demand homage also These matters of the Kings Exchequer made the presence of the Judges lesse acceptable and it may be occasioned some kind of oppression And as touching Castleguard it was a tenure in great use in these bloody times and yet it seemeth they used to take rent instead of the personall service else had that enquiry how much been improper 13. Of a tenants holding and of severall Lords That one man may hold severall lands of severall Lords and so owe service to them all is so common as nothing can be more neverthelesse it will not be altogether out of the way to touch somewhat upon the nature of this mutuall relation between Lord and Tenant in generall that the true nature of the diversity may more fully appeare 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 undertooke to performe service to the Lord Glanv lib. 9. cap. 4. and the Lord undertooke protection of the tenant in his right to that tenement The service was first by promise 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 himselfe 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 acknowledgement and promise not onely to performe the services due but even to be devoted to the Lords service to honour him and to adventure limbe and life and to be true and faithfull 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 each For though it be true that by promise of being the Lords man a generall service may seem to be implied yet in regard that it is upon occasion onely of that present tenure it seemeth to me that it is to be restrained onely to those particular services which belong to that tenement and therefore if that tenement be holden in soccage although the tenant be bound to homage yet that homage ties not the tenant to the service of a Knight Lit. lib. 2. cap. 5 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 himselfe to be his man Nor doth the tenants homage binde him against all men nor ad semper for in case he holdeth of two or divers Lords by homage for severall tenements Glanv lib. 9. cap. 1. Lib. 7. cap. 10. and these two Lords be in warre one against the other the tenant must serve his chiefe Lord of whom the capitall house is holden or that Lord which was his by priority who may be called the chiefe Lord because having first received homage he received it absolutely from his tenant but all other Lords receive homage of such tenant with a saving of the tenants faith made to other Lords and to the King who in order to the publique had power to command a tenant into warre against his own Lord. If therefore he be commanded by the King in such cases unto warre he need not question the point of forfeiture Glanvil lib. 9. cap. 1. but if he be commanded by a chiefe of his other Lords into warre against a party in which another of his Lords is engaged his safest way is to enter upon the worke because of his allegiancc to that Lord yet with a salvo of his fealty to that other Lord. Ibid. cap. 4. But in all ordinary cases tenants and Lords must have regard to their stipulation for otherwise if either breake the other is discharged for ever and if the fault be in the tenant his tenement escheats to his Lord and if the Lord faile he loses his tenure and the tenant might thence forth disclaime and hold over for ever Neverthelesse the Lords had two priviledges by common custome belonging to their tenures which although not mentioned in the stipulation were yet more valuable then all the rest the one concerning matter of profit the other of power That of profit consisted in ayds and reliefe The ayds were of three kinds Ibid. c. 8. one to make the Lords eldest sonne Knight the other to marry his eldest daughter the third to helpe him to pay a reliefe to his Lord Paramont which in my opinion
of these persons the one being perpetuall the other temporary therefore is there also by these laws a difference in the disposall 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 naturall affection going along with the blood and this so continued in custome untill these times for though the Miror of Justices 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 Bract. lib. 5. cap. 20. 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 Lib. 1. cap. 10 But let the time of the entrance of this law be never so uncertaine it s now a declared law that the King in such cases is the common curator or tutor of all such persons as he is a chiefe Justice rendring to every one his right The King shall have the wrecks of the Sea Prerog Reg. cap. 11. West 1. cap. 4. What shall be called a wreck the Statute at Westm 1. declareth viz. where the ship so perisheth that nothing therein escapeth alive and these are rather in their originall committed to the King as a curator then given him as a proprietor although that custome hath since setled a kind of right which may perhaps be accounted rather a title by estoppell For the fundamentall 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 appeare Marlb cap. 17. The heire in Socage tenure shall have an action of waste and an accompt against his guardian for the profits of his lands and mariage The heire in Socage being under age shall also be under custody of such guardian of the next kindred Bracton lib. 2. cap. 37. who cannot challenge right of inheritance in such lands so holden as if the Lands descended from the father side the mother or next of the kindred of the mothers side shall have the custody and so if the Lands descend from the mother the father or next kindred of the fathers side shall have the custody And this custody bringeth with it an authority or power onely and no right as in case of the heire in Knightservice and therefore cannot be granted over as the wardship in Knightservice might but the guardian in Socage remaineth accomptant to the heire for all profits both of land and marriage The full age of tenant in Socage is such age wherein he is able to doe that service which is 14 yeeres for at such age he may b able by common repute to ayd in tillage of the ground which is his proper service But the sonne of a Burgesse hath no set time of full age but at such time as he can tell money and measure cloath and such worke as concerne that calling Merton cap. 1. Widdows deforced of their Dower of Quarentine shall by action recover damages till they recover their Dower cap. 2. They shall also have power to divise their crop arising from her Dower Bract. lib. 2. cap. 40. It was used that the heire should have the crop with the Land but this Statute altered that former usage and yet saved the Lords liberty to distraine if any services were due Writs de consimili casu granted in cases that fall under the same Law and need the same remedy West 2. cap. 24. and such Writs shall be made by agreement of the Clerks in the Chancery and advice of such as are skilfull 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 lesse a grievance and just cause of complaint that Kings used to send Writs of new impression to execute the dictates of their own wils and not of the Laws of the Kingdome M. Paris addit Artic. 44. as the complaints of the Clergy in the times of Henry the third doth witnesse Neverthelesse because many mens cases befell not directly within the Letter of any Law for remedy and yet were very burdensome for want of remedy it s provided by this Law that in such emergent cases that doe befall within the inconvenience shall likewise be comprehended within the remedy of that law Aide to make the sonne of the Lord a Knight West 1. c. 36. 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 yeerely value of Soccage tenure The uncertainties of ayds are by this Law reduced and setled as touching the summe and thereby delivered the people from much oppression which they suffered formerly Nor was onely the particular summe hereby but also the age of the sonne when he was to be made a Knight viz. at the age of fifteen yeeres too soon for him to performe Knightservice but not too soone for the Lord to get his money And the daughter likewise was allowed to be fit for marriage at seven yeeres 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 gaine that made the Law and it was not amisse to have the ayd beforehand though the marriage succeeded not for many yeeres after and if the Lord died in the interim the executors having assets paied it or otherwise his heire 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 latter birth albeit even they also have been of ancient constitution and divers of them itinerant also and some of them setled in one place The worke of the Justices itinerant was universall comprehending both matters of the Crown and Common-pleas That of oyer and terminer is onely of Crown pleas originally commenced and inquired 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 worke that is to deliver the Gaols of all criminall offenders formerly indicted or before themselves Justices of Assize and Nisi prius are to have cognisance of Common pleas onely and for the most part are but fo inquiry All which saving the Justices itinerant in ancient use were instituted