The pandectes of the law of nations contayning seuerall discourses of the questions, points, and matters of law, wherein the nations of the world doe consent and accord. Giuing great light to the vnderstanding and opening of the principall obiects, questions, rules, and cases of the ciuill law, and common lawe of this realme of England. Compiled by William Fulbecke.

The fourth Dyalogue of Seigno∣ries and Seruices. (Book 4)

NOmomathes.

Because things are better and more certainly known by the de∣finition [Diuision. 1] of them, therefore I pray you let me first haue of you some definiti∣on or description of a Seignorie.

Codicgn.

A Seignorie, which we call feodum, may be thus described.* 1.1 A bountifull granting of land for doing homage or some other speciall seruice.a 1.2

Anglonomoph.

A seignory with vs,* 1.3 is nothing else but a relation of delitie betwixt the tenaunt and the Lord.

Canonolog.

In our Canon law it is shortly defi∣ned:* 1.4 The granting of land for homage.b 1.5

Nomomath.

Shew me I pray you how homage and other seruices had their first existence and [Diuision. 2] beginning, but first shew me what homage is.

Anglonomoph.

Homage is thus performed. The tenant that is to do homage,* 1.6 must haue his head discouered, and his Lord sitting, he must kneele before him vpon both his knees, and shall holde forth both his hands betweene the hands of his Lord, and shall say as followeth. I become your man from this time forward of life and member, and earthly honour, and to you shall be faithfull and loyall, and shall beare vnto you faith for the tenements, which I claime to hold of you sauing the faith which I beare to our Lord the King: which being done the

Lord sitting shall kisse him.c 1.7

Nomom.

Hath this Ceremony beene aunci∣ent?

Codicgn.

* 1.8The kneeling and giuing of a kisse at the doing of such seruice is very auncient: for Tiridates the King of Armenia did kneele down before Nero the Emperor, whom Nero lifted vp and gaue him a kisse.d 1.9 And long before his time, Alexander the great did imbrace, and with a kisse greeted such as made the like potestation of obedience and loyaltie vnto him,e 1.10 and long before that as it seemeth it was vsed in Iudaea, for vpon these words of the Psalmee 1.11 (kisse the sonne) our English glosse addeth by way of interpreta∣tion (in signe of homage) and Tremellius and Iu∣nius (in signe of fealty:) sithence these times this respectiue humiliation hath spred it selfe into o∣ther countries and territories: for the Duke of Gelderland did conceiue an oath in these words to Charles King of France: Ego deuenio vassallus ligeus Caroli regis Francorum, pro ratione quinqua∣ginta millium scutorum auri ante festum diui Rhe∣migij mihi soluendorum, &c.e 1.12

[Diuision. 3] Nomom.

I desire greatly to knowe the originall and first blossoming of other seignories.

Anglonomoph.

* 1.13The most common seignorie of accompt which wee haue in our Law, is a seig∣norie by reason of a Manor, which may be thus defined. A manor is an inheritance of auncient con∣tinuance cōsisting of demesnes & seruices, perquisites, casualties, things appendant and regardant, customes, liberties, &c.

Nomoma.

What? do so many things concurre to make a manor: will not demesnes and serui∣ces serue?

Anglono.

Yes, demesnes & seruices will suffice as materiall causes to make a Manor,f 1.14 but it is a naked manor which hath nothing else.

Nomom.

I would gladly heare somewhat of the commencement and first creation of a Man∣nor.

Anglonomo.

M. Parkins doth very well and ori∣ginally describe it in this maner.* 1.15 The originall of a Manor was when the K. did giue a thousand acres of land, or a greater or lesse parcell to one of his sub∣iects and his heires, to hold of him and his heires, and the donee edifieth a house vpon his land, as his mansi∣on place & of 20. acres. or lesse, or greater parcell, he doth infeoffe a stranger before the Statute of Quia empto. terrar. to hold of him and of his heires as of the same house by the plowing of 10. acres of arable land parcel of that which remaineth in his own posses∣sion, & infeoffeth another of another parcell to hold of him by carying ordure to his arable land, and infeof∣feth a third man of a third parcell to goe with him in the warre against the Scots, and so by continuance of time (saith he) a Manor is made.g 1.16 Yet by his fauour somewhat els goeth to the making of a Manor: namely, suite of Court at his house or mansion place,h 1.17 and this suite must bee the suite of more freeholders then one (so that some doubt may be made of M. Kitchins assersion, when he saith, that in some Manors there be no tenants but copiholders, & yet in such Manors be Court baronsi 1.18) for if all the

freeholds do escheat vnto the lord beside one, or if he purchase al but one the manor is extinct, for it cannot be a••manor vnles there be a court baron belonging to it: and a Court baron must be held before suitors, and not before one suitor, therfore one freehold cannot make a manor.k 1.19

[Diuision. 4] Nomom.

You haue well declared vnto me the beginnings of seignories and manors: but haue there bin no laws made for the strengthning and preseruing of them: for me thinks they be good meanes to increase and support, the wealth, puis∣sance, and florishing estate of the realme.

Anglono.

Yes, our law in this case hath not ei∣ther slūbred or winked. For in the ancient statute of Magna Charta it is prouided that Nullus liber homo det de caetero amplius de terra sua,* 1.20 vel vedat de caetero, quā vt de residuo terrae suae possit sufficientur fieri domino feodi seruitiū ei debitū quod pertinet ad feodū illud,l 1.21 which statute (as M. Stāford auouch∣eth,) is but a cōfirmation of the cōmon law: and he (a most diligent and exquisite searcher of the reasons of law, so that I may boldly speake of him, that which I shal not say impudently & vn∣truly, Foelix, qui potuit rerum cognoscere causas) sift∣eth out the reason of this Law. For (saith he) if one that held by Knights seruice migh haue bin suffe∣red to haue aliened the greatest part of his land, he would haue aliened the same peraduenture to holde of him but in Socage, or by some small rent, and then hauing so little a liuelod left to himselfe, how had hee been able to haue done the seruice of a Knight or man of warre, or what should his Lord haue had in warde

to haue found one to haue performed the seruice? surely little or nothing.m) 1.22 But it seemeth doubtfull notwithstanding the Statute of Magna Chart. whether the tenaunt might alien his whole te∣nancie or not, whereupon the Statute of Quia emptores terrarum was made, which permitted euery freeman to sell his lands or tenements, or any part therof at his pleasure to hold of the chief Lord by the same seruice, that the feoffer held, prouided alwaies that by any such sale, there come no lands to mortmain. This Statute (as M. Stamford noteth) remedieth the mischiefe, which was before found in the wardship, but not the other mischiefe touching the defence of the Realme, for when one mans liuing is dismem∣bred, neuer a one of the feoffees nor the feoffor is able to doe the seruice of a Warrior for want of liuelode, there being so little quantity of land in euery of their hands, yea much more vnable sithence this statute is the feoffer then before, for before when he gaue it to hold of himselfe, he reserued somewhat in lieu of the land which went from him, whereas now he can reserue no∣thing of common right.n) 1.23 And the land which he retaineth in his owne hands may perhaps be of small value.

Nomom.

What is the most generall and most [Diuision. 5] common seruice of all?

Anglonomoph.

Fealtie,* 1.24 for that is incident to e∣uery tenure, vnles it be tenure in frankalmoign.o) 1.25

Codicgn.

So it is with vs: for fealtie which of vs is called fidelitas, is due to euery Lord to

whom any seruice is to be performed: and euerie tenāt ought to do such seruice,* 1.26 yea though he be a religious man and professed vnder rule.p) 1.27

Canonolog.

But such a religious man may not say, Ego deuenio homo vester, nor humiliate him∣selfe to execute the rite of homage.q) 1.28

Anglonomo.

By our law he may do homage: but may not say to his Lord Ego deuenio homo ve∣ster, because he hath professed himselfe to be one∣ly God his man, but he may say, I do vnto you ho∣mage, and to you shalbe faithfull and loyall.r) 1.29

[Diuision. 6] Nomoma.

Shew me I pray you some speciall kinds of these seruices, that I may know them more fully, and more distinctly.

Codicgn.

* 1.30Seruices are diuersified according to the qualities of the persons to whom they are to be done: if it bee to be done to an Emperour, it is to be tearmed an Imperiall seruice: if to a King, a regall seruice,s) 1.31 if to Religious persons Ecclesiasticall: if to Lay-men, secular,t) 1.32 but when it is to bee done to a lesser estate then to an Em∣perour or King, as to a Duke, Marquesse, or Earle, then it is called feudum honoratum; some∣time land is giuen by inferior persons & meaner men without expressing any seruice, and then the Law intendeth that fealty only is to be done, and this is called Francū or Liberū,u) 1.33 sometime it is gi∣uen with reseruation of speciall seruice and that is feudū non nobile,a) 1.34 sometime it is giuen in perpe∣tuū & sometime but for tearme of life, and then it is called perpetuum vel temporaleb) 1.35. But though by the oath of fealtie the vassalle be bound to serue

his Lord in warre, yet this is limited to such case where the warre is not notoriously vniust or vn∣lawfull: for if it be otherwise, though hee doe him no seruice in warre, yet he shall not forfeit his tenement,c 1.36 neither is he bound to do his ser∣uice to his Lord if his Lord be excommunicate, or banished, vntill hee haue obtained absolution or a recalling from banishment:d 1.37 but in a iust warre, the vassalle is bound to helpe his Lorde against euerie other person, who is not the Lord of the vassall, yea euen against his father, brother, or sonne.

Anglonomoph.

Seruices in our Law are of di∣uers sorts:* 1.38 some being more noble and some lesse noble: of those which are more noble, some be∣long to the king and some both to the king & to subiects: of those that belong to the king, some be domestical only, as Petite Sergeancy: some bel∣licall onely as Knights seruice: in Capite some both domesticall & bellicall, as grand sergeancy, & some of the more noble seruices belong vnto subiects as well as to the king, as knights seruice and homage: those which be lesse noble may be diuided into two branches: for either they are in∣genuous, or seruile: the ingenuous are of two sorts: either performable by particular men, or a certaine people, as fealty, rent seruice, & the like which make socage tenure: or else performable by a certain people only, as burgage: the seruile or base seruice, is villenage. Of all these seruices saue such only as haue bin before described I will speake somewhat, seuerally, briefely, & in order.

Petite Sergeancy, is where a man holdeth his land of the king, paying yearely vnto him a bow, or a speare, or a dagger, or a launce, or a spurre of gold &c.e 1.39 Knights seruice in Capite, is where a man holdeth his lands or tenements of the king as of his crown immediatly ab antiquo, by doing some warlike seruice. Grand sergeancy, is where a man holdeth his lands or tenements of the king as of his Crown immediatly, by doing some spe∣ciall seruice to the king in person; as by carrying his banner or launce, or by being his marshall, or sewer, or caruer, or butler, &c.f 1.40 of homage and fealtie hath been spoken before. Rent seruice, is where the tenaunt holdeth his lande of his Lord by a certaine rent, for which, if it be behind at the day, wherein it ought to be paied, the Lord may distraine for it of common right. Burgage, is where the tenants of an auncient borough, do hold lands within the Borough of the King or some other person, as of his borough by a cer∣taine rent.g 1.41 Villenage, is where a man holdeth of his Lord, either by doing vnto him some parti∣cular base seruice, and such a one is called a te∣nant by villenage, or by doing generally whatso∣euer base seruice his Lord will commaund and impose vpon him, and such a tenaunt is termed in our Law a villaine.h 1.42 This miserable estate of villenage, had his beginning soone after the di∣luge, and now by the consent of all nations it is ratified,* 1.43 for the West Indians though they haue no knowledge of diuine or humane Lawes, yet bondmen they haue, and the Mohometists make

Christians their bondslaues, the Portugallians make villaines of the Mahometistes which they sell by companies as flockes of sheepe in the market.i) 1.44 The Romains had power by their law to sell or kill their villains:k) 1.45 but for mittigation of cruelty the Law Petronia was made, whereby it was forbidden that none should put his villaine to death without cause, which law was execu∣ted by Nero,l) 1.46 & after by Adrianus:m) 1.47 but our law a more concionable fauorer of life hath restrained the hands of the Lord from the bloudshed of his villaine, and from the mayming of him,n) 1.48 hauing regard to the Law of God which recompenseth these bondmen with freedom whom the Master hath by some blowes maymed,o) 1.49 which lawe Constant. the Emperor did put in practise,p) 1.50 but al the lands & goods purchased & possessed by the villaine the law frankly giueth to the Lord, if he wil seise & claime thē,q) 1.51 wrētched I cōfesse is the estate of such men, but yet patiently to be tollera∣ted, because quā potestate alijs deferre voluim, fer∣re debemus, & they whose auncestors, or thēselues haue ackowledged thēselues to be villaines, must now duetifully beare the yoake, though Cui plus licet quam par est, plus vult quam licet,r) 1.52 and let the Lords of such villaines hearken to that which is spoken of an heathen man diuinely: Boni modera∣toris est restringere potestatem,s) 1.53 but to leaue these particulers & to proceed more generally, as one mā may hold lands of another by euery of these abouesaid seruices as of his person,* 1.54 so likewise he may hold of him as of his Honor or Manor for if

a man hold of the king as of any honor which is come to his highnes by discēt from any of his an∣cestors, hee shall not holde in Capite, for by the words in the first Chapter of Prerogatiua regis, it is euident that if it shal be said a tenure in Capite, it must bee holden of the crowne of a long time, the words be ab antiquo de Corona, & that cannot bee when it is but newly comen to the Crowne, and the statute of Magna Charta c. 31. did (as Ma∣ster Stamf. saieth) helpe this matter by expresse words, if such an honour came to the crowne by way of escheate, but not if it came by way of dis∣cent,* 1.55 or any other way: and that statute doth set forth certain honours by name which be not of the ancientnes of the crowne, that is to say, the honor of Wallingford, Notinghā, Bullingbrook and Lancaster, therefore he that holdeth of the King, as of these Honors, holdeth not of the king in chiefe,t) 1.56 but other honors there bee which of so long time haue bin annexed to the Crowne, that to hold of thē is to hold in chiefe, for where∣as one held of the king as of a certaine honor,* 1.57 to yeeld a certaine rent to the keeping of the castell of Douer, this hath beene taken to bee a tenure in chiefe, and so it hath been thought if one hold of his highnes as of the Honor of the Abbe of Marle,u) 1.58 and Anno vndecimo of king Henry the se∣uenth, the honour of Ralegh was annexed to the Crowne, therefore if any man hold as of that ho∣nor it is a tenure in capite,x 1.59 and therefore there is a good rule in the Register of Writs, that a man shall not make a fine for alienation of lands

held of the King as of his honour, but for lande held in Capite only: for there be certain honors which be held in Capite, and there is a certaine writ, that the Escheator shal not greeue any man for alienation of land held as of an honour, for that is as of an honor, & not as of the kings per∣son, & no fine shal be paied for the alienation of such land.a 1.60 And whereas it was found by Office that land was held of the queen as of her princi∣pality of Wales, by the seruice of going with the Prince in Warre at the charge of the Prince, per curiā,b 1.61 this is no Tenure in capite. And Ma∣ster Finchden putteth this diuersity, that where an Honour is seised into the Kings hands, if a Manor held of the Honor do escheat to the king by a common Escheat, if the King alien the Ma∣nor to hold of him, the tenaunt shall hold by the same seruices as hee helde by force of the Ho∣nour (for the Honour seemeth to bee vice domini in this case and as a meane Lord) but if it come to the King by forfeiture of warre or by some o∣ther treasō, or by some other cause which touch∣eth the Kings person, and the king seiseth, and enfeoffeth another, the feoffee shall hold of the King as of his Crowne:c 1.62 and though the statute of Magna Charta ca. 31. before recited doe say, Si quis tenuerit de nobis de aliqua escaeta vt de hono∣re Wallingford, Bolen &c. non faciet aliud seruitium quam fecit praeante: yet this is to be intended of a common Escheate and not otherwise.d 1.63 So a man may holde of the King as of his Manour, and yet not holde in Capite, for it was found by

office that one helde land of the King, as of his Manor of Plimpton, and other landes as of his Manour of Darington, which came to the king by the attainder of treason of the Marquesse of Excetor, this hath beene thought to be no Te∣nure in capite, for tenures in chiefe did begin in auncient time vpon the graunts of Kings to de∣fend them against rebelles and enemies: and at this day the Queene may create a tenure in Ca∣pite, if shee giue land to hold of her person: o∣therwise it is if it be giuen to hold of an Honor, Manour, &c. for a Tenure in chiefe must bee im∣mediatly of the King, and is created by the King onely: for a Tenure created by a subiect cannot be a Tenure in chiefe, nor haue any prerogatiue annexed vnto it, and if the tenants of an Honour should hold of the King in Capite, the Honour when it came to the King should bee destroyed, which may not be, and there is no reason that the tenaunt in whom there is no default should bee preiudiced in his tenancy by the offence of the Lorde,e 1.64 and if the Q. purchase a Manour of which I.S. holdeth by Knights seruice, the te∣nant shall hold as hee held before, and hee nee∣deth not to tender his liuerie, nor primer seisin: for he doth not hold in Capite, but as of a Ma∣nour, and if his heire be in ward by reason there∣of, he may haue an Ouster le maine at his ful age, and if the Queene grant the Manour afterward to W.N. in fee, excepting the seruices of I. S. now I. S. holdeth of the queen as of her high∣nesse person: yet he shall not holde in Capite

but by such seruices as he helde by before of the Mannor: for the Queenes act may not preiudice her tenant,f 1.65 but where a man holdeth of the Q. by reason of an other thing, as namely, by reason of a Mannour, this is no tenure in Capite,g 1.66 but if the King be seised of a Mannour, and giueth to a stranger an acre of the Mannour, to haue and to hold to him and to his heires of his body engen∣dred without expressing any seruice, the donee shal hold of the King by knights seruice in Capi∣te,h 1.67 and tenures likewise may be to hold of one as of his person or of his Manor by diuers other seruices, as if a man had made a feoffemēt of land before the statute, or a gift in taile sithēce the sta∣tute, to holde of him by the making of a bridge ouer certaine land, or by making a Beacon in the land giuen, this is a good tenure: for a man may holde of an other by doing seruice for a com∣mon good, as well as for the priuate profit of the Lord, as to repaire a bridge, or a high way, or by keeping such a Castle, for the Lord himselfe in this hath profit with others.i 1.68

Nomom.

You haue taken some paines Anglo∣nomoph. [Diuision. 7] in describing the particular kindes of te∣nures:* 1.69 now I would heare somewhat of Codicgn. whether one within age be excused from perso∣nall seruice, because his age is not fit to serue, so that the seruice age is suspended vntill the matu∣ritie of his age: or whether he shalbe compelled to doe his seruice by a substitute.

Codicgn.

To dissolue that question, a difference is to bee taken, for either the Father of the Heire

which is within age,* 1.70 dyed in the warlike seruice vndertaken for the defence of his Lord in a iust warre, I meane that which is waged for the safe∣tie of the Common weale; or else he dyed in his house by humane infirmity without any bearing of armes: in the first case he is not bound to doe any seruice either in his owne person, or by any other person interposed during his minority, be∣cause his father who died in the field is supposed in lawe still to serue by the glory of his valour,k 1.71 which the best and most learned of all Poets did well imagine: who when hee had placed Caesar in the middest of extreame troubles, to comfort and encourage him, representeth vnto him the ghost of Scaeua, one that dyed a good while be∣fore, but yet after many assaults, and many wounds, stood out as a Conqueror,l 1.72 which con∣ceite of Lucan, Tasso a moderne Italian Writer, a man of an excellent Poeticall witt in the de∣scription of Guidoes Funerall doth passionate∣ly, though Popishly glaunce at,m 1.73 but if the Fa∣ther dyed not in warre, nor in the expedition, but by naturall death in his owne house, then if the Heire at the death of his Father bee in his pupillage, hee must performe that seruice by a substitute.

Anglonomoph.

* 1.74But by our Law hee shall be in ward to the Lord during his minoritie, if hee holde his Lands by Knights seruice, and the Lord shall haue the profites of his land that hee may maintaine a sufficient man to doe him ser∣uice in the warre, whereas the heire by reason

of his tender age cannot personally perform the seruice, nor by the want of discretion prouide a conuenient person to accomplish it,n 1.75 but if hee be made a Knight within age, then because the Lawe intendeth that hee is fit to doe his seruice, because knighthoode is bestowed in regard of precedent merite, or of some eminent prowesse and towardnesse, as may appeare by that saying of Scipio in the senate: ab annis septemdecim ad se nectute semper vos aetatem meam honoribus vestris ante istis, ego vestros honores rebus gerendis precissi:o 1.76 the law is otherwise: But 2. Edw. 6. in the case of Sir Anthony Browne of Surrey vicont Mounte∣gue, a difference was taken,* 1.77 where the tenant by Knights seruice dieth seised his heire being with∣in age, and a Knight at the time of his death; and when after his death, hee is made Knight during his minority: for in the former case it was helde that he should be in warde notwithstanding his knighthoode,p 1.78 For otherwise the auncestor may procure his sonne within age to be made Knight by collusion, to the intent to defraude the Lord of his ward, but this seemeth to bee but a weake reason, because knighthood is not by intende∣ment of the law granted vpon so sleight a cause: but it seemeth to master Brooke, where the heire is in warde, and is made knight being in warde, this shall free him from wardship, for the statute of Magna Charta ca. 3. (Postquam heres fuerit in cu∣stodia, cum ad aetatem peruenerit scil. 21. annorū ha∣beat haereditatem suam sine releuio & sine fine: ita ta∣men qd. si ipse dum infra aetatem fuerit fiat miles, ni∣hilominus

terra sua remaneat in custodia dominorum vsque ad terminum supradictum) this (saiethq 1.79 Ma∣ster Brooke) verie probably (guiding his opinion by the premisses) is onely to bee intended where the heire is made Knight within age, being in ward after the death of his auncestour, and not where hee is made Knight in the life of the aun∣cestor, but admit this to be meant of such an heire onely, yet by no consequence can a man inferre heereof, that if an heire within age bee made Knight in his fathers life time, hee shalbe in ward after the death of his father, nay there is good au∣thoritie for the contrary.r 1.80

[Diuision. 8] Nomomat.

Let mee knowe, I pray you, what penalties lie vpon the Tenant if hee doe not his seruice.

Codicgn.

* 1.81By our Law the vassall is depriued of his tenancie, of whom fealtie is demaunded, and hee refuseth to performe it:s 1.82 so that the Lord doe demand fealty at due times and allow∣ed by Law, because if he should demand it euery yeare, the vassall should not loose his tenancie,t 1.83 also the vassall looseth his tenancie, if beeing at full age,* 1.84 hee be not in expedition with his Lord, or if he doe not depute some able person for the discharge of the duetie, or if hee doe not pay to his Lord stipendia militiae pro quātitate feodi, when he is lawfully demaunded,u 1.85 and that is said to be a due quantitie of a Knights fee, when the vassall which goeth not in war, nor sendeth a sufficient man, doth yeeld the halfe part of the yearely va∣lue of his tenancie to the Lord.x 1.86

Anglonomo.

There be many conclusions in our Lawe aunswerable to that which you haue said,* 1.87 for it hath bene affirmed, that if a man holde his land of his Lord by homage and fealtie, and hee hath done homage and fealtie to his Lord, and the Lorde hath issue a sonne and dyeth, and the Seignorie discendeth to the sonne, in this case the tenaunt which hath done homage to the father, shall not do homage to the sonne, be∣cause when a Tenaunt hath once done homage to his Lord, hee is excused for tearme of life to doe homage to any other heire of the Lord,a 1.88 But if a man bee seised of a Mannour, and an other man holdeth land of him as of the fore∣sayde Mannour by homage, and hath done his homage vnto him, and a stranger bringeth a Precipe quod reddat against the owner of the Mannour, and recouereth the Mannour a∣gainst him, and sueth execution, in this case the Tenaunt shall againe doe homage to him that recouered the Mannour, though hee haue done homage before, because the estate of him who receiued the first homage, is def••ated by the Recouerie, and it lyeth not in the mouth of the Tenaunt to falsifie or defeate the Reco∣uerie which was against his Lord.b 1.89 And if a Tenaunt which ought by his Tenure to doe homage to his Lord, come to his Lord, and say vnto him, that hee is readie to doe him ho∣mage for the tenements which hee holdeth of him, and the Lord doth then refuse to receiue it, after such refusall the Lord cannot distreigne

the Tenaunt for the homage, before the Lord require him to doe homage vnto him, and hee refuseth,c 1.90 and he that holdeth by Knights Ser∣uice of the King, neede not goe to warre with him, if hee will finde a sufficient person conue∣niently armed, and fit to goe with the King, and this seemeth good reason: For it may bee, that hee that holdeth by such seruices, doth lan∣guish in sicknesse, so that hee cannot goe, nor ryde: And a Feme sole which holdeth by such seruices, may not in such case goe in proper per∣son, and it hath beene said, that Escuage shall not bee graunted vnlesse the King goe to warre himselfe in proper person, and after such a voy∣age royall it hath beene likewise affirmed, that by authoritie of Parliament Escuage shall bee assesed and put in certaine how much euerie one that holdeth by an entyer Fee of Knights Seruice, which was not with the King by himselfe or by an other for him, shall pay to his Lord of whom hee holdeth by Escuage, as if it bee ordeigned by authoritie of Parliament, that euery one which holdeth by an entyer Fee of Knights seruice, that was not with the King nor any other, &c. for him shall pay to his Lord for∣tie shillings, then euery one that holdeth of his Lord by the moitie of a Knights Fee, shall pay to his Lord fourtie shillings, and hee that hol∣deth by a fourth part, tenne shillings, and so pro ratad 1.91.

[Diuision.] Nomom.

Resolue me, I pray you, whether when the Tenaunt hath committed treason or felonie,

and thereof is convicted and attainted, hee shall (as to his tenancy) incurre any preiudice.

Condicgn.

In such case eyther the offence is committed against the person of his Lord,* 1.92 and so hee doth preiudice all those that are to succeede him in the land, by order and course of Law de∣priuing them of the aduantage of inheritance,e 1.93 or hee hath offended against some other person, and not against the person of the Lord, then the children only, and such as w••re to take benefit by the person of the father, as issuing from his bo∣dy are repulsed from the inheritance,f 1.94 and then it goeth to them of the kinred which are nearer in degree.g 1.95

Anglonomoph.

By our Law, where the tenant is outlawed of felony, it is in the Lords election to haue a Writ of Escheate, supposing that his te∣nant was outlawed of felony, or that hee dyed without heire, for by the attainder the bloud is corrupted:h 1.96 But it seemeth by Nicholses Case,* 1.97 that the partie attainted ought to bee dead be∣fore the land can escheate, for according to the opinon of Dyer and Barham, in the Kings Case after the attainder, and till Office be found, the fee simple shall bee in facto in the person at∣tainted so long as he shal liue, for as he hath a ca∣pacitie to take land of a new purchase, so he hath power to hold his auncient possessions, and hee shall be tenant to euery Precipe, and if hee died before Office found, and the land be held of the King, the land shall goe to the King in nature of a common eschete,i 1.98 but this is to be intended

in case of felonie, for in case of treason the King shall bee presently after the attainder in actuall possession without office found by the statute of 33. H. 8. cap. 20. and if a man be executed for felonie or die after iudgement before he be put in execution, yet the Writ shall say pro quo suspen∣sus fuit, and if he bee put to death by some other punishement then hanging, though the Writte say pro quo suspensus fuit, that is not materiall,k) 1.99 and if the father purchase lande, and his eldest sonne is attainted of felonie and dieth, hauing issue a sonne, and the father dieth, the next in de∣gree of discent and worthinesse of bloud vnto the sonne attainted, shall not haue the land, but it shall escheate to the immediate Lord of whom the Land is held, for the bloud is corrupted: o∣therwise it had bin if he had died in the life of his father hauing no issue.l) 1.100.

Nomom.

Though I must needs confesse that it is very good reason that the sonnes of the, which are disloyall subiects and traitors to their Prince should bee barred from the inheritance of their auncestours, that their fathers infamy should al∣waies accompanie them, and that they shoulde liue in perpetuall memorie, indignitie, and dis∣grace, that their life should be a punishment vn∣to them, and their fathers faults a continuall cor∣risiue (for that is done, because their fathers vi∣ces are feared in them, & it may be well thought that being bredde, and brought vp of naughtie parents, they will be prone to doe the like, and punishment in that case is vsed in the nature of a

medicine and not in fourme of a penaltie: and as it hath the effect of a punishment euery one is punished for his owne fault onely: but as it hath the effect of a medicine, so one man is punished for an others fault, that by suffering shame hee may be deterred from crime) yet heere it may be said, what place is there left for innocencie if the most guiltles, may be punished for the misdea∣meanor of the most guilty; for as it is not the fault of the corne that it groweth in a bad soile, so it is not the fault of the sonnes that they are begot∣ten of lewd fathers, therefore it may seeme meete and expedient that there should be ibi paena, vbi culpa: and that offences should rest vpon the au∣thors, and that the falle shoulde goe no further then the fault, and there is a Law in Deutronom. Non interficiantur patres pro filijs, nec filij pro patri∣bus, sed quis que pro peccato suo interficiatur,m) 1.101 and in an other place, vnusquisque in iniquitate sua mo∣rietur, & quicunque comederit vuam acerbam illius dentes obstupescent,n) 1.102 and again anima quae peccauit ipsa morietur, filius non portauit iniquitatē patris.nn) 1.103

Codicgn.

But Saule did not obserue that rule in Deutronom. when he did put to the sword the ci∣tizens of Nobe, where he did slay men, women, children, oxe, asse, and sheepe ore gladij.o) 1.104

Canonol.

But Dauid did keepe it,* 1.105 who would not haue had reuenge taken vpon Ishboseth the son of Saul,p) 1.106 and caused them to be slaine, who wrought his death.

Codicgn.

Yet God did otherwise, who in the diluge did destroy the parentes with their chil∣dren,

who spared neither sexe nor age in Sodom, who destroyed together all the whole nation of the Amalekites, who would needs haue Achan destroied with the children, who did roote out al the inhabitants of Ierusalem.

Cononol.

We must otherwise conceiue of God his iudgements, then of mens proceedings: hee hath said viae meae non sunt viae vestrae, all perfecti∣on, goodnes, and iustice beginneth at him: who doth not any thinge because it is iust, but it is therefore iust because he doth it, or woulde haue it done; and if Achan had bin araigned be∣fore an Ordinary tribunal, he only had perished and not his children, but God his iudgement is extraordinary, and his will is therefore a Lawe because he is god, he is not bound to render ac∣compt to any: neither is he guided by any Lawe but by the Lawe of his owne will: and though one man know not what an other doth purpose and imagin, yet God knoweth the hart and sear∣cheth the reines and might see somewhat con∣demnable in Achans children, which man could not discouer. Yet in some cases hee doth obserue an ordinarie course of punishment, forq) 1.107 Corah perished onely but not his sonnes, but they were kept safe for the Lords seruice, and of their poste∣ritie came Samuel.

Codicg.

That which I spake before (Canono.) out of the scipture was but by way of obiection, for our law punisheth not the Sons with death, but only with losse of inheritance in case of treason.r) 1.108

Anglonomoph.

The same Lawe doe we obserue

both in felonie and treason together with the forfaiture of the goods.

Codicgn.

The losse of inheritance in our Lawe doth comprehend the forfeiture of the goods.

Nomom.

Ye haue dwelt a long time in this dis∣course of tenures and seruices: now therefore I would haue ye to speake somwhat of lointenan∣cie and tenancie in common.

Notes

• * 1.1

  1 The discrip∣tion of a seig∣norie by the Ciuill law.
• a 1.2

  Glo. in vsi. feu. tit. quib. mod. feod. ac∣quir. in prin∣cip. c. vnico § in primis & tit. in quib. caus. feud. amit. & de feud. dat: mi. valuas. ca. vnico. & meli∣us tit. de feud. dat: in vicem leg: cōmissor: reprob: cap: v∣nic:
• * 1.3

  2. Likewise by the Common law.
• * 1.4

  3. By the Ca∣non law.
• b 1.5

  C. ex dili∣genti. de simō.
• * 1.6

  1. What ho∣mage is, and how it is to be performed by the Common law.
• c 1.7

  Litt. li. 2. c. 1.
• * 1.8

  2. That Ho∣mage hath bin practised in ancient ••ime.
• d 1.9

  Tranquil. in Neron.
• e 1.10

  Plutarch. in Alexand.
• ee 1.11

  Psalm. 2. r. 12.
• e 1.12

  Bodin. lib. 1. de repub. c. 9.
• * 1.13

  1. What a Manor is, and wherof it con∣sisteth.
• f 1.14

  26. H. 8. 4.
• * 1.15

  2. The original of a Manor.
• g 1.16

  Park. Reser∣uat. fol. 128. Sect. 670.
• h 1.17

  33. H. 8 Br. Comprise. 31. Mannor 5.
• i 1.18

  Kitch. Court Leet & Baron tit. Manerium. fol. 4.
• k 1.19

  Br. Ca. Sect. 210. & 23. H. 8. Br. Court barō 22. in fi. & 33. H. 8. Suit. 17.
• * 1.20

  Statutes made for the pre••er∣uation of seig∣nories and ma∣nors.
• l 1.21

  Magn̄ charta c 13.
• m) 1.22

  Stamf. prae∣rog. c. 7. tit. A∣lienati: sans li∣cence.
• n) 1.23

  Stamf. ibid.
• * 1.24

  1. Fealtie is the most ge∣nerall seruice in the Com∣mon law. 2. and in the Ciuill law.
• o) 1.25

  Littlet. lib. 2 c. 3. Sect. 13. &c. 5. Sect. 22.
• * 1.26

  3. That by the Ciuill law the Common law and the Ca∣non law, a re∣ligious man ought to do fealtie.
• p) 1.27

  ca. vnico tit: de natura feu∣di. Et tit. quali∣ter vassall. iur. deb fideli: do∣m̄i: Et in ca. v∣nico. tit quib. mod: feud: a∣mittatur. Et in quib. causis feudum amitt. & tit. quae fuit pri. causa be∣nef. amit.
• q) 1.28

  C. veniēs & C. ex diligenti. de Simon. gra∣uem de excess: praelat. cap. fin: de re Iud:
• r) 1.29

  Littlet. lib. 2. c. 1. Sect. 2.
• * 1.30

  1. The diuerse kindes of ser∣uices in the ci∣uill Law, and their definiti∣ons.
• s) 1.31

  Cap. 1. de feud: march: & ducat: & in ca. 1. quis dicat. dux, comes, marchio.
• t) 1.32

  Tit. de his qui feud. dar. pos. & tit. E∣piscop. vel Abbar.
• u) 1.33

  Ca. 1. de no. form: fidel:
• a) 1.34

  Ca. fi de ca∣pilan: qui eur: vendid.
• b) 1.35

  De feud: march: in prin. de alien. feud. in fine, & de feud: guard: & castald.
• c 1.36

  In cap: Dn̄o guerrā in prin. in tit. hic fini. lex deinde &c.
• d 1.37

  D. cap. Dn̄o guerrā in fin.
• * 1.38

  2. The diuerse kinds of serui∣ces in the cō∣mon law and their definitiōs
• e 1.39

  Littlet. lib. 2. ca. 9. sect. 1.
• f 1.40

  Litt. li. 2. ca. 8. sect. 1. 23. H. 3. Gard. 148.
• g 1.41

  Lit. li. 2. c. 10. sect. 1. 2.
• h 1.42

  Lit. li. 2. c. 11. sect. 1. & 2.
• * 1.43

  3. The original of villenage & the nature thereof.
• i) 1.44

  Bodin. lib. 1. de repub. c 5.
• k) 1.45

  Tacit. li. 14.
• l) 1.46

  Senec. lib. 3. de benefic.
• m) 1.47

  Sparcian in Adrian.
• n) 1.48

  Litt' lib. 2. c. 11. Sect' 32.
• o) 1.49

  Exo. 21. ver. 26. & 27.
• p) 1.50

  l. 1. de E∣mēd, seruor. C.
• q) 1.51

  Litt' lib. 2. c. 11. sect' 8.10.
• r) 1.52

  Gellius lib. 17. c. ••4.
• s) 1.53

  Ammian. lib. 29.
• * 1.54

  4 The tenure wherby a man holdeth of a honor or Ma∣nor is descri∣bed, and by ex∣amples illu∣strated.
• * 1.55

  5 Certaine ho∣nors which be not of the aun∣cientnes of the Crowne.
• t) 1.56

  Stamfords Praerog. c. 7.
• * 1.57

  6 Some ho∣nors which are annexed to the Crowne.
• u) 1.58

  Fitz. nat. bre. 259.
• x 1.59

  34. H. 8. Br. Cas. 230.
• a 1.60

  Regist. 184. Br. Alienac' 33
• b 1.61

  18. El. Dy. {per} Curiam.
• c 1.62

  47. E. 3. 21. {per} Finchden.
• d 1.63

  29. H. 8. Br. Ca. 114.
• e 1.64

  30. H. 8 44. Dyer.
• f 1.65

  29. H. 8. Br. Ca. 113.
• g 1.66

  3. Eliz. Com̄ 241. Wildgous case.
• h 1.67

  Ibid' 240. per Car.
• i 1.68

  11. H. 7. 12. 12. H. 7. 18. {per} Finch 24. H. 8. Br. Cas. 51.
• * 1.69

  1 Whether one within age be cōpellable by law to doe all manner of seruice either by himselfe or some other.
• * 1.70

  2 A diuersitie in the ciuill law, whether the father of such an infant dyed in a iust war, or a home in his ••ed.
• k 1.71

  Instit. de Ex∣cus. tutor. §. sed si in bello ff. ad leg. Aqu. l. qua actione, §. si quis in col∣luctatione.
• l 1.72

  Lucan. li. 10.
• m 1.73

  S. Torqua••. Tasso. Canto. 4. Gierusal. li∣berat.
• * 1.74

  3 That by the cōmon law the infan•• shalbe in ward if his father died sei∣sed of lād held by Kn ghts seruice wi••hout any such diue••∣sitie.
• n 1.75

  Litt. li 2. c. c. 4. sect. 3.
• o 1.76

  Liuius li. 38.
• * 1.77

  4. A diuersitie in the commō law where the heire of the te∣nāt by knights seruice is w••th in age, and a knight at the time of his fa∣thers death & where not.
• p 1.78

  2. E. 6. Br. Gard. 42. & 72.
• q 1.79

  Br. ibid.
• r 1.80

  6. Elizab. Comm̄ 268.
• * 1.81

  1. What pe∣nalties lye vp∣on the tenant if he doe not his seruice.
• s 1.82

  C. vnico, quae fuit prima cau∣sa. §. sed non est alia.
• t 1.83

  §. & si vastal∣lus si de feud. de funct. §. li∣cet vastallus &c. domino guerrā in tit. hic finit. lex &c.
• * 1.84

  2 Many cau∣ses of the te∣nan••s forfei∣ture in the ci∣uill Law.
• u 1.85

  De pace iu∣ram. firm. §. sin.
• x 1.86

  C. Imperia∣lem §. firmiter de prohi. feud. aliē. {per} Freder.
• * 1.87

  3. Some causes of forfeiture at the common Law.
• a 1.88

  Litt{ur} lib. 2. c. 7. sect' 13.
• b 1.89

  Litt{ur} ibid sect' 17.
• c 1.90

  Litt{ur} lib. 2. c. 7 sect' 19. 20.
• d 1.91

  Litt{ur} lib. 2. c. 3. sect' 5 6. 8. 7. E. 3. 29.
• * 1.92

  1 Whether, when the tenāt hath cōmitted felony or trea∣son, and is at∣tainted, he shal suffer any pre∣iudice in his tenancy. 2 A diuersitie in the ciuil law where the of∣fence is com∣mitted against the person of the Lo••d, and where against the person of a stranger.
• e 1.93

  Cap. vnico §. deni{que} in fin. in illis verbis fi tamen fuerit paternum tit. que fuit prima causa ben. a∣mitt.
• f 1.94

  §. Si vassallus culpam: si de feud. defunct'.
• g 1.95

  Gloss. super verbo reuoca∣buntur in d. si vassallus cul∣pam.
• h 1.96

  48. Ed. 3. 2.
• * 1.97

  3 That by the common law by attainder of felony or trea∣son the blood is corrupted & in the o••e case the land shall e••chete to the King: and in the other to the immediate Lord.
• i 1.98

  18. Eliz. Com̄ 477. Nichols case.
• k) 1.99

  Fitz. nat. bte. 144. H.
• l) 1.100

  32. H. 8. 48. Dyer.
• m) 1.101

  Deut. c. 24.
• n) 1.102

  Ierem. 31.
• nn) 1.103

  Ezechi. 18.
• o) 1.104

  1. Reg. 22.
• * 1.105

  4 The afore∣said determi∣nations & con∣clusions of ci∣uill and co••∣mon law, touching the forfaiture of the offēdor are examined by the Law of God.
• p) 1.106

  2. Reg. 4.
• q) 1.107

  Numb. 26.
• r) 1.108

  ff. & C. ad l. Iul. mai.