The Principal Laws of England, Treatise · Part 18 – Part 26

The Principal Laws of England · Treatise · Part 18 – Part 26

p. 33Knyghtes seruice.

KNyghtes seruice includeth homage, fealeie and for moste ꝑte escuage, and whosoeuer holdeth his lādes by knyghtes seruice, is bound by the law of this realme to do vntounto his lorde homage and fealtie, and to paye for most parte escuage, when it shal be assesed by authoritie of parliamente as hereafter more playnlye shalbe declared vntounto you.

Homage is the most hūble and reuerent seruice that a man of free condition can do, for whan the tenaunte shall do homage to his lord, the lord shal sytte, and the tenaunt shal knele before hym vponupon bothe knees, and shall holde his handes bitwene hys lordes handes, and saye in this wise, I become your man from this daye forthward of life and of membre and of earthly honoure, and to you shall be faythfull and loyall, and faithe to you shall beare for the landes that I clayme to holde of you, sauynge the faythe that I beare vntounto oure soueraigne lorde the kynge, and than the lorde so syttynge shal kysse him. But if an ecclesiasticall persone whych by hys ordre and profession hath addicted himselfe to the seruice of god in especiall shall do homage to his lord he shall not say: I become your man bycause he hath professed himselfe to be the onelyonly man of god: but shal say p. 34I do to you homage, and shall be to you faythfull and true, and fayth to you shall beare for the tenementes y^• I holde of you, sauynge the faythe whyche I do owe to our soueraygne lorde the kynge.

Ye shal note also, that when a woman not maried doth homage to her lord, she shal not say: I become your woman, for it is not conuenient that a woman shulde be the woman of any other than of her husbande that she shall mary, but she shal saye euen as the ecclesiasticall persone sayeth: I do vntounto you homage. &c.

That yf perchaunce a man holdeth sundry landes and tenementes of sundrye lordes, and eueryevery of them by knyghtes seruice, than in the ende of his homage makinge, he shal say, sauynge the fayth that I owe to our soueraygne lorde the kynge, and to myne other lordes.

And it is to be knoewn, that none is bounde to do homage to the lord, onles it be suche a tenaunte as hath in the tenauncye an estate of fee simple, or fee tayle, eyther in hys owne ryght, or in the ryght of an other.

For if a woman hauehave landes or tenementes in fee simple or fee tayle, whyche she holdethe of her lorde by knyghtes seruice, and taketh an husbande and hauehave issue, in this case the husbande in the lyfe of his wyfe shal do the homage, bycause he hath a title to hauehave the landes by the curtesy of Englande yf he ouerlyueth her, & also he holdeth them nowe in his wiues ryghte, yet before issue had bytwene them, y^• homage shal be made in theyr both names. But if the woman p. 35dieth before any homage made by her husbande in her lyfe, and the husbande kepeth styll the landes as tenaunt by the curtesye, now he shall not do homage to hys lorde bycause he hath nowe an estate but for terme of lyfe.

Fealtie is as moche to saye as a fidelitie or faythefulnes, in doynge wherof the tenaunte shall holde hys hand vponupon a boke, & say thus, Heare you this my lorde, I to you shall be faythfull and true, and fayth to you shall beare for the landes and tenementes whyche I clayme to holde of you, and duelye shall do you the customes and seruices whiche I owe to do you at the termes assigned, as me helpethe god and hys sayntes. And than he shall kysse the boke, but he shal not knele as he y^e doth homage.

And ye shal obserue that homage can not be done but to the lorde hym self, where as y^e steward of the lordes courte or the bailife may take fealtie for the lorde. Also tenaunte for terme of life shal do fealte, but homage (as is sayde) he can not do.

Nowe as concernynge escuage that is to saye, the seruice of the shild ye shal vnderstand, that he that holdeth his lādes by escuage, whan the kynge makethe a viage royall in to Scotlande for the subduynge of the Scottes, is bounde to be wythe the Kinges Maiestye by the space of .xl. dayes well and conuenientlye arayed and appointed for the warre. And he that holdeth his lande but by the moitie of the fee of knightes seruice, is bounde by the force of his tenure to be wyth the kynge by the space of p. 36xx. dayes, and so proporcionably accordyng to the rate and quantitte of hys tenure.

But now to our institute and purpose, after thys viage royall in to Scotlande (in whyche the kynge goeth in persone) and after the retyre in to Englande agayne, a parliamente is wont to be sommoned, in whyche shal be prescribed & asseised what euerye persone that helde hys lande by homage and went not wyth the king neither by hymselfe, nor by his deputye, shall paye to hys lorde in satisfaction of his not seruynge, and accordynge to the taxacion herof, eueryevery tenaunte shall paye to hys immediate lorde, whether it be the kyng or other after the rate and porcion of hys tenure, if he holdeth by an hoole fee, he shall paye the hoole escuage, if by a moitie, the halfe, yf by the fourth ꝑte of a fee, the fourth parte. &c. and this money thus asseysed, is called scurage or escuage, for whyche the lorde to whome it is due, maye verye well for the non paymēt therof distreyne.

But here it is to be noted, y^t some tenaūtes by custom vsed tyme out of mynde are bound to pay but the moitie, or the thyrde parte of that which shall be asseised and limited by acte of parliament.

Yea, and the custome is in some place, that to what somme of money so euer escuage is asseised, y^• tenaūtꝭ shall paye neuer but such a certeyne somme of mony, and this escuage is called escuage certeyne, where as the other is called escuage vncertayne.

Finally ye shall vnderstande, that escuage vncertayne is alwayes adiuged to be knightes seruice, and draweth vntounto it warde, mariage, & reliefe, but escuage certaine is no knyghtes seruice but is of the tenure of socage as shall be herafter more amplye shewed.

Of warde mariage and reliefe.

EUeryEvery knyghtes seruice draweth vntounto it, warde, mariage, and releife. Wherfore it is now ryght expedient somewhat to entrete of them.

Ye shall therfore be admonished, that whan the tenaunte whyche holdeth hys lande by knyghtes seruyce dyeth, his heyre male beynge at that tyme w^tin thage of .xxj. yeares, the lorde shall hauehave the warde, that is to saye, the custodye or kepynge of the landes so holden of hym to hys own vse and profyte, tyl the heyre cōmeth to the full age of .xxj. yeares. For the law here presumeth that tyl he cōme to this age, he is not able to do such seruice, as is of this tenure requyred Furthermore yf such heyre be vnmaryed at the tyme of the deathe of the tenaunte, than the lorde shal hauehave also the warde and bestowynge of the maryage of hym.

But yf tenaunt by knyghtes seruice dyeth, hys heyre female being of thage of .xiiii. yeres or aboue, thā the lord shal hauehave the ward neyther of y^e lande ne yet of the bodye of suche an heir, and the reason herof is bycause a woman of that age maye hauehave a husbande hable to do knyghtes seruice, that is to saye, to wayte vponupon the kynges maiesties persone whan he auaunceth into Scotlande wyth hys armye royall.

But if suche an heyre femalle be within the age of .xiiii. yeres and not maryed at the tyme of the deathe of her auncestoure, than the lorde shall hauehave the warde of the lande holden of hym, tyll suche heyre female commeth to the age of .xvi. yeres, by force of an acte of parliamēt in the statute of Westm̄ the fyrste.

Note that there is a great diuersitie in the lawe bytwene the ages of females and of males, for the female hath these manye ages apoynted by the lawe. Fyrste, at .vii. yeares of age the lored her father maye distreyne his tenauntes for ayde to mary her. Seconde, at .ix. yeares of age, she is dowable. Thyrdlye, at .xii. yers she is hable to assent to matrymonye.

Fourthly, at .xiiii. yeares she is able to hauehave her lande, and shall be oute of warde if she be of thys age at the geantye, but of the kynge onelye.

Homage auncestrell.

TEnaunt by homage auncestrel is he whyche holdeth his lande of his lorde by homage, and bothe he and his auncestours whose heyre he is hauehave holden the same lande of the saide lord & of his auncestours tyme out of mynde by homage, and hauehave done vntounto them homage, and this is called homage auncestrell, by reason of the longe continuaunce whyche hath bene by title of prescription as well concernynge the tenauncye in the bloude of the tenaunte, as concernynge the lordeshyp in the blode of the lord. And this seruice of homage auncestrell drawethe vntounto it warrantye (that is to saye) yf the lorde which is nowe in lyfe hathe ones receyued the homage of his tenant, he oughte p. 44to warrant the same tenaunte, what tyme so euer he shal be impleaded or sued for such lande so holden of him by homage auncestrell.

Moreouer suche seruice of homage auncestrell draweth to it acquitall (that is to saye) the lorde oughte to acquyte the tenaunt agaynste all other lordes y^t can demaūd any maner of seruice out of the tenauncye.

Wherfore yf in thys case the tenaunte whyche holdethe by homage auncestrell be impleaded of hys landes, and voucheth his lorde to warrauntye, who commeth in by processe and demaundethe of the tenaunte what he hath to bynde hym to the warrantye, and the tenaunt sheweth howe he and his auncestours, whose heyre he is, hauehave holden his lande of hym and of his auncestoures tyme ease or continuall infirmitie. All these and suche lyke be dispargementes. But here also ye shal vnderstande, that it shall be sayd no dispargement, onlesse the heyre be so maryed when he is wythin the age of discretion, that is to say, within the age of .xiiii. yeres. For if he be of that age or aboue and consenteth to such mariage, it is no dispargement, neyther shall the lorde for suche mariage lose his warde, bycause it shal be reputed and assigned to the folye of the heire beynge of age of discretion to consēt to suche mariage.

Now, yf the gardeyne offre to the heyre beyng in his warde a conuenient mariage wythout dispargement, and the heyre refuseth it, as he maye very wel do, than y^e lord shall hauehave y^e value of the mariage of suche heyre, p. 40whan he commethe to hys full age. But yet yf he marye hymselfe being so in warde agaynste the wyll of hys gardeyne, than he shal paye the double value by force of the statute of Merton before remembred.

And ye shall note that if landes holden by knyghtes seruice descende to an infaunte from hys mother, or from any of hys auncestours, his father beyng yet alyue, in thys case the lorde shall not hauehave the mariage of this heyre, for during the lyfe of the father, the sonne shall be in warde to no man.

Finally, it is to be knowne, that he whyche is gardeyne in cheualrye in ryght, maye after he hathe seased the warde, graunte the same eyther by dede or wythout dede to an other man & than he to whom suche graūt is made is called gardeyne in fayte.

Now as touching reliefe, ye shal knowe, that yf a man holdethe hys lande by knightes seruice and dyeth hys heyre beynge of full age (the full age of y^e male is .xxi. yeares, of the female .xiiii.) then y^• lord of whome the land is holden shal hauehave of the heyr reliefe.

Reliefe of a hole knightes fee is .C s. & of halfe a knightes fee fyftye .s.

Also a man maye holde landes of a lord by two knyghtes fees, and thā the heyre beynge of full age at the death of his auncestoure, shal paye to his lorde for reliefe .x. poundes.

Seruice of castel garder.

YE shal vnderstande that a man may holde by knyghtes seruice and yet not hold by escuage, nor shal paye no escuage, for he may holde by p. 41castell garder, that is to saye, by seruyce to kepe a tower of hys lordes castell, or some other place, vpō a reasonable warnynge, whan hys lorde heareth that enemyes wyll come or be alredy come into Englande.

Thys seruyce is also knyghtes seruice, and drawethe to it warde mariage & reliefe, as the common knyghtes seruyce dothe.

Of graunde sergeauntie.

THere is also an other kynde of knightes seruice, called grande sergeantye, whyche is where a man holdeth is landes or tenementes of the kynge by suche seruice as he oweth in proper person to do, as to bear the baner of oure soueraigne lorde the kynge, or his spere, or to conduct hys hoste, or to be his marshall, or to be the sewar, caruar, or butler at the feaste of the coronation, or to be one of the chamberlaynes of the receypt of his eschequere, or to do lyke seruices to y^e kyng in propre persone, such maner of seruyce I saye, is called grande sergeantye, that is to saye a greate or hygh seruice, and the cause why it is so called, is bicause it is the moste honorable and moste worthye seruice that is, for he that holdeth by escuage is not appoynted by hys tenure to do anye other more specyall seruice than an other is bounde that holdethe by escuage, but he that holdeth by grande sergeantye, is bound to do some speciall seruice to y^e king.

Also if he that holdeth of the king by grante sergeanty dyeth, his heire beyng of ful age, than the heyre shal paye to the kynge for reliefe, not onlye .C.S. as he that holdethe by escuage p. 42shall do, but moreouer the clere yearly value of those landes and tenementes whych he so holdeth of the kynge by grande sergeantye.

Furthermore ye shal obserue that in the marches of Scotlande some men holde of the kynge by coruage, that is to say, by blowing of an horn to the intent to warne the men of the contrey whan they heare that the Scottes or other theyr enemyes be commynge, or be alreadye entred in to Englande, whyche seruice is also a kynde of grande sergeantie.

Grande sergeantie therfore is as moche to saye in latyn, as magnum seruitium, that is to saye, a greate or hyghe seruice, lyke as petite sergeantye is called paruum seruitium, y^t is to saye, a lytle or smale seruice.

But to reuerte agayne to the mamatier ye shall note yf any tenaunte holdeth of any other lord than of the king by such seruice of cornage, then it is no graunde sergeantye, but yet neuertheles it is knyghtes seruice, & draweth to it ward mariage and reliefe, for this is a rule infallible that none can holde by grande sergeanty but of the kynges owne maiestie.

Finallye ye shall vnderstande, that al they whych holde of the king by thys seruice called graunde sergeauntye do holde of the kynge by knyghtes seruyce, and by vertue of thys tenure the kynge shall hauehave of them warde mariage and reliefe, but escuage yet he shal not hauehave of them oneles they holde by escuage of him by expresse and speciall wordes.

Petite sergeantie.

p. 46TEnaunte by petite sergeantye is he y^t holdeth his land immediatly of oure soueraygne lorde the kynge by thys maner of seruice, to paye to the kynge yearelye eyther a vowe, a spere, a dagger, a swerde, a payre of gantlettes, a paire of spores of golde, a shafte or such other smale thynges apperteynyng to the warre, & this seruice is in effect but socage, bycause that suche a tenaunte is not bounde by hys tenure to go ne do anye thing in his owne propre person touchyng the warre, but only to rendre and pay yerely certayne thynges to the kynge, as a man ought to pay a rente wherfore thys seruice of petite sergeantye is no knyghtes seruyce, but yet ye shal note, that a man can not holde neyther by petite sergeauntye neyther by graunde sergeantye, duplicate page p. 44duplicate page out of mynde, surely the lorde yf he can not denye this, and if he hath receiued the homage of such a tenaūt, is bounde by the lawe to warrante hym his lande, so that if the tenaunt lose his lande in defaute of the lorde thus vouched (that is to saye) called to warranty, he shal recouer against hym so moche in value of those landes and tenementes whyche the lord had at the tyme of callynge to warrantye or at any tyme after. But yf the lorde neuer receyued the homage of hys tenante, than he maye verye well whan he is thus vouched disclaime in the lordeshyp or seignorye, and so put out the tenaunte of hys warrantye. Where ye shal note, that in eueryevery case where the lord disclaim in his seignorye in courte of recorde, his seignorye or lordeshyp is extinct, p. 45and the tenaunte shall holde from thensforthe of the nexte lorde to him that thus disclaymed.

Thus ye perceyue that homage auncestrell is not but where as is a long cōtinuaūce, as well in the blode of the tenaunte in respecte of hys tenauncye, as in the bloude of the lord in respecte of his seignorye. Wherfore if the tenaunte doth ones aliene hys landes to an other, although he purchasethe the same agayne, yet he shal not hold any longer by homage auncestrell bycause of thys discontinuaunce, but shall holde it nowe by the vulgare & accustomed homage.

Of socage.

SOcage is properly, where the tenant is bound to come wyth his soke (that is to saye) with his plough to eare and sowe parcell of the demene landes of hys lorde, which seruyce in aūcient tyme was very commen & frequēte but nowe by the mutuall consent bothe of the lorde and of the tenant yt ys conuerted for the moost parte in to a yerely rente. How be it the name of socage abideth styll wherfore now al y^t is not knyghtes seruice is caled by y^• name of socage.

So y^• yf a man holdeth by fealtye onelyonly, or by fealtye and homage for all maner of seruyce, it is but socage tenure for homage alone makith not knyghtes seruyce, yea yf a man holdeth by escuage certayne, as I hauehave said here tofore, he holdeth in effecte but by socage.

Nowe where a man holdethe hys landes by socage and dyeth, hys heyre beynge wythyn thage of .xiiii. yeres the lord shal not hauehave y^• warde p. 46but the next of kynne to the heyre to whome the heritage can not descend shall hauehave the wardeshyp as well of the lande as of the heyre, tyll the heir come to the age of .xiiij. yeares, and suche gardeine is called gardeine in socage, and shal rendre accomptes to the heyre for the issues and profytes that he hathe receiued of the landes durynge suche tyme, hys reasonable costes and expēses deducted, so that he shall not hauehave the wardeshyp to his owne vse & profyte as gardeine in cheualrye hath.

Finally ye shal vnderstande that whan tenaunte in socage dyethe, the lorde shall hauehave reliefe, that is to say the value of the rent that is yearlye due vntounto hym of the tenauncye besyde the yerly rente: so that in effecte after the death of his tenante he shal hauehave of the heyre .ii. rentes, saue that for the reliefe, he may distreyne forth wyth, but for the accustomed rent he can not distreyne tyl the vsuall daye of payment be come.

Francke almoyne.

TEnaunte in francke almoygne, that is to saye in free almesse is where a byshop, deane, or any other ecclesiasticall persone holdeth of his lorde in pure and perpetuall almes, and suche tenure began firste in olde time after this maner. Whan a man was seased in ancient time of certain landes or tenementes in his demene as of fee, & of the same tenementes enfeoffed an abbot & his couent or a priour & his couent, or any other persone ecclesiastical, as a deane of a colege mayster of an hospitall, or suche like to hauehave & to hold the same landꝭ p. 47to them and to theyr successoures for euer in pure and perpetuall almesse, or in francke almes, in these two cases the tenementes shulde be holden in franke almoyne.

By force of whyche tenure they that holde in francke almoyne after thys sorte be bounde of ryght before god to make orisones and prayers, to celebrate masses and to do other diuine seruices for y^• soules of their graunters and feffers, and for the soules of theyr heires whych be dead and for y^• prosperous estate of their heyres that be nowe alyue. And bycause of ryghte they be bounde to thys diuine seruice, they be discharged by the lawe to do any other prophane or corporall seruice, as fealtye or suche other lyke.

But neuerthelesse if suche as hold theyr tenementes in franke almoyne do omyt and leaue vndone these deuine seruices wherūto they be boūd before god, the lorde can not distrein them, ne yet compell them by any other meanes by the course of the cō mon lawe, but the onelye remedy is to complayne of them to theyr ordinarye, who of ryght ought to compel suche ecclesiasticall persones to do the deuyne seruice due as afore said.

But here ye shall note that yf a persone of a chyrche or any other ecclesiasticall persone holdethe of hys lorde by certeyne diuine seruice to be done, as to synge masse eueryevery frydaye in the weke, or placebo and …irige, or to fynde a preest to synge masse or to distribute in almes .C. pence to a hondred men at suche daye: in all these cases, yf such diuyne seruice be p. 48vndone, the lorde mayne very wel distrayn, bycause the seruice is put here in certayntye.

Now I sayde, that if in olde time a man dyd infeoffe suche ecclesiasticall persone after such sorte, he shuld holde hys lande in franke almoyne, but at this day it is otherwise, for by the reasone of a statute called, Quia emptores terrarum, no man can aliene ne graunt landes or tenementes in fee simple to holde of hym selfe, so that nowe yf a man beynge seased of landes in fee simple graunteth the same by licēce to an ecclesiastical person in franke almoyne these wordes franke almoyne be voyde, & the ecclesiastical persone shal holde them immediatlye of y^•, lorde of the feoffer by the same seruyces y^• the feoffer helde, so that no man can hold in franke almoyne, but by force of a grante made before the sayd statute, onelyonly the kinges maiesty excepted, for he is out of the compasse of the-statute.

Finally, ye shall note that where as a man holdeth in frank almoyne, his lorde is bounde by the lawe to acquite him of al maner of seruice that any other lorde can hauehave or demaūd out of the sayde landes.

That yf he dothe not acquyte him but suffre him to be distreyned, than he shall hauehave agaynst his lorde a certayne wryt, called a wryt of meane, and shall recouer agaynste hym hys damages and costes of his suite.

Of burgage.

A Tenure in burgage, is where an aūciēt broughe is, of which the kynge is lorde, and they whyche hauehave tenemētes w^tin y^• same brough p. 49holde the same of the kyng, payenge a certeyne yearly rent, whych tenure in effecte is but socage tenure. Lykewyse it is, where as any other lorde spirituall or temporal is lord of such broughe.

Here ye shal note that for the most parte suche auncient burghes hauehave dyuers customes and vsages which other townes hauehave not. For some burghes hauehave a custome, that y^e yongest sonne shal inherite before the eldeste, whyche custome is called commonlye broughe Englyshe.

Also in some burghes by the custome the woman shall hauehave for her dower al the landes and tenementes wherof her husbande was seased at anye tyme durynge the couerture.

Moreouer in some burghes a mā may deuise his landes or tenemētes by testamēt at the tyme of his death, and by force of suche deuyse or legacye, he to whome the bequeste was made, after the death of the testatour maye by force of thys auncient custome entre in to the landes so to him bequethed or deuised without anye lyuery of seasone to him made or further ceremonye of lawe.

Dyuers other customes in Englande there be contrary to the course of the common lawe, whyche if they be anye thynge probable and maye stande wyth reason are good and effectuall, not withstandynge they be agaynste the common lawe.