Reliquiæ Spelmannianæ the posthumous works of Sir Henry Spelman, Kt., relating to the laws and antiquities of England : publish'd from the original manuscripts : with the life of the author.

CHAP. II.

The Original, Growth, and Propagation of Feuds: first in general, then in England.

BEfore I enter into the Question in hand, it will be necessary for better understanding that which followeth, to set forth the original, growth, propagation, and condition of Feuds in general: which I conceive to be thus.

There were no doubt from the beginning of Jus Gentium, Lords and Ser∣vants; and those servants of two sorts. Some to attend and guard the person of their Lord upon all occasions in War and Peace. Some to manure his Lands for the sustenance of him and his Family. When private Families were drawn into a Kingdom, the Kings themselves held this distribution. Examples hereof are in all Nations. 3King David well observ'd it in the In∣stitution of the Kingdom of Israel: where, if such services have any shew of Feuds or Tenures, we have a pattern for them all: viz. For that of Franc∣almoine 4in the Levites: for Knight-service, Tenure in Capite, and Grand Ser∣jeanty 5in the Military men, which serv'd the King personally by monthly

courses: for Socage, in those whom David appointed to manure the Fields, dress the Vineyards, the Olive-trees, the Mulberry-trees, and that had the care of the Oyl, of the Oxen, of the Camels, Asses, Sheep, &c. For the lands and portion of the Levites was given to do the service of the Taber∣nacle; 1the lands of the other tribes, to fight the battels of the Lord a∣gainst his idolatrous enemies, and to root them out. Thus may fancy couple the remotest things. To come lower down and nearer home, 2Pausanias 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 toge∣ther were called 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 Trimarcesiam, i. e. a society of three horsemen. 3But 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 4in Latin Cli∣entes, and in another place 5calleth them among the Germans Comites & fa∣miliares, as accounting them (like Abraham's 6318. Souldiers) to be all their Lord's followers and of his family. Tacitus 7likewise nameth them Comites, as companions and followers; quod bello sequi Dominum coguntur, saith 8Cujacius. 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, Ba∣rons, 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 9speaking of the Germans saith, (and so it appears by Tacitus) 10neque 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 quan∣tity 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 11also sheweth,

That they had no common Magistrate; but the Lord of the Town or ter∣ritorie 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 12Suecus, and our Saxon Authors testifie. And tho' Jornandes a Spanish Goth writeth it after the Spanish corruption Bella∣gine••, 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 a∣greeth, 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 husband∣men) 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 secta∣bantur Dominos suos, were called Vassalli, and sectatores manerii sive Curiae Domini Vassals and Suiters of Court. The Bilagines or Town-laws were called Consue∣tudines 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, 1Ge∣rardus 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 pote∣state 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 pre∣sently after his former words, Postea vero eo ventum est, ut per annum tantum stabilitatem haberent (res in feudum datae). Thus for another while their Feu∣dal 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 plea∣sure of their Lords, either by grant or sufferance, 2till further grace con∣firmed 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 3left 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 Feu∣datarie 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 Ge∣rardus

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 be∣tween 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 usur∣ped 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 En∣gland; 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 mak∣ing Feuds hereditary, not regarding the former use of our Saxon Ance∣stors; 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 through∣out 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 heredi∣tary; for on them especially is the Feudal Law grounded and composed, tho' enlarg'd oftentimes by Constitutions of the Emperours, and spread a∣broad into divers Nations by their example, countenance, or authority. Wherein the Court of Milan was chiefly followed in rebus judicatis (as ap∣peareth by Duarenus 1and Merula 2;) but reserving unto every Nation their peculiar rights and customs. 3For it was generally received into every King∣dom, 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, 1Quam aliam Feudorum originem quaeri∣mus? 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 con∣dition to become perpetual and hereditary, 2did 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 pro∣per name of Feuds, whereby they were produced to be perpetual and here∣ditary. Cujacius therefore speaking of them both, saith, 3Feudum differt a benefi∣cio, quod hoc temporaneum fuit, illud perpetuum. And treating in another place of these beneficiarii and temporarii possessores, he saith further, 4Iisdem postea c••pit concedi feudum in perpetuum, quod est verum, & proprium Feudum. Con∣cluding in a third place, 5that Propria Feudi natura haec est, ut sit perpetua. So that Cassineus in the Feuds of Burgundy saith, 6that Omne Feudum quocun∣que modo acquisitum fit haereditarium, cum successione sit redactum ad instar Allodia∣lium: 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 pa∣trimonial 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 therefore and truly is it said by the ever honoured Justice Littleton, that Feodum idem est quod haereditas; and the captious criticism of Sir Thomas Smith (Dr. of the Civil Law) in denying it, is to his own reproach: for his great Master Cujacius (as before appeareth) supporteth Littleton; and his fellow Civilians do tell him, quod in feudis particularis & localis consuetudo at∣tendenda est. And Littleton received it as used in this signification from the eldest writers of our Law. Of the like indiscretion is that of Dr. Cowell, who carpeth at this ancient phrase used in the formulis of our pleading, where it is ordinarily said, Rex seisitus fuit in Dominico suo ut de feodo, as tho de feodo was there to be understood according to the Court of Milan, for praedium militare superiori Domino & servitiis obnoxium; not by the laws of Eng∣land, pro directo dominio vel haereditate pura & absoluta.

To conclude therefore. It appeareth by this passage of Justice Littleton's, joyned to that we have formerly delivered, that our Law took no notice of Feuds till they were become hereditary with us; which being since the Conquest (as we have already shewed, and shall prove abundantly hereafter) overthroweth all the arguments in the Report produced for proving our Feodal rites of Tenure, Wardship, Marriage, Relief, &c. to have been in use among the Saxons; for till they were hereditary, these appendances could not belong to them. It is also very improbable that Feuds were made here∣ditary here in England before other Countries; or that the more civil Na∣tions of Europe, should take example herein from our rude (if not illiterate) Saxons.

Notes

• Instances of Feuds among the 〈◊〉〈◊〉.
• 3

  1 Chron. ••hap. 23, & 2••
• 4

  Ibid. Cap. 23.
• 5

  Cap. 27.
• 1

  Num. 21. 14. 1 Kings 13. 17.
• 2

  Lib. de Phocid. p. 118.
• Among the Gauls.
• 3

  Bell. Gall. lib. 6. p. 118.
• Ambact••.
• 4

  Bell. Gall. p. 184.
• 5

  Ibid. p. 124.
• 6

  Genes. 14. 14.
• 7

  Germ. Mor. p. 129.
• 8

  Cujac. ad Constit. Lotharii feud. lib. 5. p. 284.
• 9

  Bell. Gall. lib. 6. p. 120.
• 10

  Germ. Mor.
• 11

  Bell. Gall. p. 121.
• 12

  In Epist. ad Bon. Vulcan. Vid. Bellagines in Glossario nostro.
• 1

  Cujac. in pr••••. a•• lib. p. 1.
• 2

  Cujac. ad li•• 1. feud. p. 21.
• 3

  Vid infra Chap. ••6
• Tenu••e•• ••••r Li••e.
• How Feuds be∣came he∣reditary.
• Feuds he∣reditary in England.
• 1

  Comment. in consuet. F••••d. Cap. 1.
• 2

  Rex Mediolan. lib. 3.
• 3

  Gunt. p. 409.
• 1

  A•• lib. 1. Feud. Tit. 1. p. 21.
• The great growth of 〈◊〉〈◊〉 ••s to title.
• 2

  Cujac. Feud. lib. 3. p. 180.
• 3

  Ibid.
• 4

  Lib. 1. p. 7.
• 5

  Feud. lib. 1. p. 5.
• 6

  〈◊〉〈◊〉 3. ••. 5. 〈◊〉〈◊〉 437.
• No pro∣per Feuds before the Conquest.