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the Conqueror made to Allan the earl of Britain, giving him omnes terras et villas quæ nuper fuerunt comitis Edwini in Eboracshire cum feodis militum et aliis libertatibus, ita libere et honorifice, sicut idem Edwinus eadem tenuit ante obsessionem Ebor.
In Doomsday book, in the description of Surrey, mention is made of one Cactio, who in the Conqueror's time held de Wardardo, et reddit 50s. et servitium unius militis.
The leiger books of St. Alban's, containing the acts of king Offa overrunning the Kentish men, convocatis omnibus sibi officium militare debentibus.
King Edgar gave the hundred of Oswald to Oswald bishop of Worcester, et redditiones socharium et regis servientium : this hundred at this day is called the hundred of Oswald, and notice of his grant is taken in Doomsday book, where it is called Wircester.
Bracton sheweth that forinsecum servitium, regale servitium, and militare servitium, are all one.
It will likewise be proved, that these tenures were of the same nature, and had likewise fruits, as now they have; for these tenures had HOMAGE due unto them, as now they have; as is proved by Malmesbury; who, speaking of the controversy between Henry I. and Anselm, saith, the king would have him do homage, more antecessorum, which sheweth it had been a custom long before.
The leiger-book of Abingdon, says Turkillus, did homage to the abbot of Abingdon for his lands in Kingstone; but being slain in the battle with Harold, Henricus de Ferrariis seized upon his land; with whom the abbot had much contention.
By the leiger book of Ely, Ethelstan went to Whitton, and did him homage for land in Ely, in king Edgar's time. That there was fealty, Ingulphus proves, who says that Edward the Confessor gave unto Griffin and his heirs the principality of Wales, reserving FEALTY. For both homage and fealty ; Doomsday, in describing the manor of Northwood in Kent, in the Confessor's time, saith, that in his time an hundred burgesses of Canterbury did suit and serRALEGH, MISC. WORKS.
vice to that manor. A mạnuscript of Abingdon shews how Wasthelinus, whose surname was Visus Lapis, did homage and fealty. After William the Conqueror's time, abbots and prioresses did homage, and in one of the manuscripts of Peterborough is the form of the homage of the abbot of Crowland, 34 Edward I. which he did for the land in Veikerk, which he held of the abbot of Peterborough, and another of the prioress of St. Michael, for land in Stanford. And by the deeds of Abingdon it appears, that when the abbot and convent received homage, that the abbot and convent sat jointly together. Radulphus de Diceto, the dean of Paul's, writes, that anno 1163 Thomas Becket, archbishop of Canterbury, excommunicated William, the patron of an advowson, because he expelled one that the archbishop put into the living: but William the patron being tenant in capite to Henry II. the king was very angry with the bishop for excommunicating his tenant, which was contrary to the law, unless it be by the consent of the king; because the tenant cannot now do homage to the king, being excommunicated; for the king cannot kiss him without sin, the rule of law being non est communicandum in osculo cum excommunicato ; and a lord is not to receive homage of his tenant during the time of excommunication.
And as homage and fealty were due by reason of knight's service, so likewise WARDSHIP was an effect before the conquest.
When William the Conqueror was at Rome, Rainaldus, upon the death of Adelinus, was chosen abbot of Abingdon, being a monk Gemetecensis cænobii, in the year 1084. Indictione 7. Epact. 2. At this time by custom the abbot of Abingdon had wardship of body and land by the manuscript of that abbey; and in the said abbot's time it appears that miles quidam Walterus de Ripario, i.e. Walter Rivers, who held land called Bedrum of the abbot, died, leaving his son of his own name within age: and Godsoline, the uncle of the infant by his father's side, would have had the custody of the land and body of his nephew; and impleaded
the abbot in the king's court; but the abbot defended the suit, and kept the possession of both body and land. In the letters patent of Edw. I. which are recited by Hackluit in his voyages, there, the king receiving the privileges given to the Five ports by Edward the Confessor, one is, that for land within the Cinque ports by Edward Geye, heirs should not be in ward. :
In Ina's laws, cap. 38. the mother was to be guardian in soccage to her children, and for their bringing up was allowed 6s. per annum in money, and a cow in summer, and an ox in winter.
So likewise was ESCUAGE incident to knight's-service before the conquest. Doomsday, in the description of Shropshire, both in case of the manor of Cheny, and in Robert Bellerock's case, makes mention de scutagio, and of the money due for it.
And that, by reason of a tenure by knight's-service, the tenant was to serve in the war, appears by a case recorded in the book of Worcester, between William bishop of Worcester and Walter abbot of Evesham. The bishop claimed sac, soc, sepulturam, et gildam regis, et expeditiones in terra, et in mare, and that by the tenure of fifteen hides in Hamptonia and four hides otherwhere ; and the cause was discussed per justitiam et breve et præceptum regis Willielmi primi, and the king (out of Normandy) sent a precept to Godfrey Constanc. episcopo, that he and divers barons should be present; by whom day was given for witnesses on both sides; and the bishop brought divers who lived in the Confessor's time, and knew that the abbot for those lands had sent soldiers in the Confessor's time divers times, and that one was steerman to the bishop, to carry him beyond seas: and therefore the abbot, seeing the witnesses so clear against him, yielded ad omnem rem sicut episcopus clamaverat.
By the book of Abingdon it appears that if the tenant, that held of the king by knight's-service went not in person, or found not a man to go with the king to war, it was a forfeiture of the land held; and if the king's tenant had an undertenant that held of him by knight's-service, and he went not to discharge his lord, the land was forfeited to the lord: for in that book it is discoursed of largely, how Henry I. having war with his brother Robert duke of Normandy, he sent over his writs, commanding his tenants, that held in chivalry of him, to send him over the milites, or soldiers, which by their tenures they were bound to send : Taritius, the abbot of Abingdon, sent to William, the king's chamberlain, to furnish the abbot with a soldier, and to discharge him of one soldier for his house of Lea, hard by the monastery, held of the abbot by knight's-service; the chamberlain pretended that he held not of the abbot by chivalry, and therefore that he would send none; but the abbot, to save himself, sent one, and after the wars ended, be sued William the chamberlain for the forfeiture of his land, and proved the tenure, and recovered by the custom of England : and by Doomsday in the description of Barrothshire, which is Barkshire, it is likewise remembered, that in the Confessor's days, if any according to their tenures, upon summons, went not, nor found another, they forfeited all their land to the king. By the manuscript of Abingdon it appears, that if any soldier were maimed in the wars, at his return he was to be kept at the charge of the lord who sent him.
It appears by Bartholomew, the monk of Norwich, that in king Edward the First's time, the mustering of soldiers generally being by the tenure, general summons with pro clamation was made, that according to the time and place appointed, as they were bound in their tenures, every one should send his soldier; at which time the constable of England used to send a bill or clerk-roll unto the marshal, who by his office was to peruse and try who came or who made default; whereby the escuage, or sum of money due to the king, was apparent; and these officers were the ordinary conductors of the army of the king in the field. About this king Edward Ist's time, the king began to bring in the present manner of mustering, first termed appearing by prayer, now pressing: for by this writer, who then lived in
the year 1297, and the 25th year of Edw. I. Bigot earl of Norfolk, marshal of England, Humfrey Bohun, earl of Hereford, constable of England, refusing to try or billet the names of soldiers, as appeareth by the king's letters, desiring him to appoint others to muster them, because they came not by the ordinary summons; they alleged, by their office, they were not bound to do it: the king made other commissioners in their places, and the earls went away from the king in displeasure; after, the king, under the great seal, released omnem rancorem, which he had against the earls; for which, saith the writer, Benedictus Deus, Amen.
It is evident by this Bartholomew Cotton, that about this time king Edw. I. begun your commissioners for musters; and therefore he noteth it as a wonder, that in the 23d year of Edw. I., Hugo de Cressingham and William Mortimer came into Norfolk, and, by virtue of the king's letters, numerare fecerunt, pressed soldiers out of the county of Norfolk and city of Norwich, and made them appear at Newmarket; where they took some, and refused others; and that the county, at the public charge, found white coates, et cultellos, et gladios. After warfaring by tenure began to be discontinued, and commissioners came down to muster men, it should seem it took no great effect; for generally the custom of warfaring in Edw. III.'s time, and downward until Henry VIII.'s time was, a captain or a nobleman would indent with the king to serve him with so many men, and the king covenanted (or the lord with the captain) to pay the captain for himself so much money a day; and if the soldiers departed from their captain, whom they covenanted to go with, the penalty was not much, until the statute of 18 Hen. VI. 7 Hen. VII. 3 Hen. VIII. provided remedy for the same.
The mustering by commission in Edw. II.'s time being but new, and levying of men by tenure discontinued, king Edw. II. took bonds of men to be before the king with force and arms wherever he should be, upon pain to forfeit all they might forfeit: the stat. 1 Edw. III. sheweth this was to the king's dishonour; and therefore maketh void