Esq., His Majesty's Chief Steward of the said Amerciaments for Trespasses and Encroachments Manor, viz.:— The Manors of Lewisham and Greenwich were antiently parcel of the possessions of the Priory of Lewisham, which was a Cell of Carthusian Fryers subject to and under the Abbot of St. Peter's at Gaunt in Flanders. By an exemplification of an antient grant on record in the Tower it appears that Edward the Confessor granted to the Abbot and Monks of St. Peter's at Gaunt the Manor of Lewisham, including Greenwich, Woolwich, Moddingham and Crumbe, with Sac and Soc Toll and Theam Infangthe of Mondbrece Uthleaw Blodwite Hamsoken and all other laws and Customs. King Henry the Ist granted to the Abbot and Monks of St. Peter's at Gaunt the Manor of Lewisham and Greenwich, and all their Churches, Lands, Rents, Tithes, &c., thereto belonging, with Sac Soc Toll Team and all other Customs, Laws and Libertys and wharfage by land and by strand, To hold as freely and honorably as they were held by the charter of the late King Edward (the Confessor) or of King William, his father.* Teste Robert, Earl of Mell, William, Earl of Warren, &c. This Charter is recited at large and confirmed by King Henry the 3rd the 16th day of February, in the 13th year of his reign." Teste I. Bath, R. Dunhelm et al. And again by King Edward the second the 24th of July, in the 11th year of his Reign." Teste William, Archbishop of Canterbury, T. Norw: et al. In the 1st year of King Henry the Fifth, at the prayer of the Commons in Parliament, Enacted, that the Statutes for avoiding of aliens should be observed and put in execution, Except Priors, Aliens, Conventual and other Priors having Institution and Induction.' King Henry the 5th, by Letters Patent under the great seal bearing date the 25th June, in the 3rd year of his Reign, declares the alien Priorys void, and that all their lands and possessions in England were vested in the king his heirs and successors by virtue of the Statute passed at Leicester in the first year of his Reign. 8 Till this time the Abbotts and Monks held the Courts Royaltys and privileges within the Manors presented and removed nuisances Sett Fines and try'd petty Causes between party and party punished various kinds of transgressions Mundbreche Bloodwite &c as appears by the Court Rolls from the beginning of Edw: Ist to 3rd of Henry the 5th." King Henry the 5th by Letters Patent under his great seal bearing date the 1st April in the 3rd year of his reign granted to the Prior of the House of Jesus of Bethlehem of Sheen in the County of Surrey and to the Convent of Carthusian Monks of the same place (inter al) The said Manors of Lewisham and Greenwich To hold to them and their successors in Free Alms for ever.1o Humphrey Duke of Gloucester (Guardian of the Kingdom during the Minority of King Henry the 6th) and Eleanor his wife being possessed of a Mansion House and about 160 acres of land at Greenwich obtained from the said prior and Convent a surrender of 40 acres of their lands adjoining to the premises in exchange for other Lands and the said King by Letters Patent passed in full Parliament the 6th day of March in the 15th year of his Reign granted to the said Duke and Duchess a Liberty to embark and enclose the said 200 acres with a Wall and to fortify it with Towers and Castles &c To hold the same to them and their heirs for ever; which said Park and Mansion house came to the Crown (as seems) on the death of the said Duke and Duchess. King Edw: the 4th by Letters Patent under the Great seal bearing date the 22nd April in the fifth year of his reign granted the said Mansion house and Park to his Queen Eliz. for life and the same received considerable additions and improvements from that Prince and also from Kings Henry 7th and 8th and was used as a Palace or place of Residence for the Royal Family." By Indenture between King Henry 8th and the Prior and Convent of Sheen bearing date the 5th of September in the 23rd year of his Reign It was agreed that the said King should have to him his heirs and assigns for ever All those Manors or Lordships Reversions Services Woods Underwoods Waters Fishings Advowsons and all other Hereditaments thereto belonging (Except three tenements in East Greenwich of John Cole) in exchange for the Monastery of Beadwell in the County of Bucks and divers other lands Tythes and Advowsons of great value in Bucks Essex Kent North'ton Surrey Cambridge and Sussex 'This has reference to more antient grants of therein mentioned." the prem, of ye Monks of Gaunt. 'See this Charter recited in the Grant of 11 Ed. 2 in the Chapter-house. '16 Febry. 13 Hen. 3, recited also in 11 Ed. 2. 24 July, 11 Edwd. 2nd. The original charter in the Chapter-house at Westminster. 'Stat. apud Leicestr. I Hy. 5, cap. 7, Abridgm. of Records, p. 535. 25 June, 3 Hen. 5; Feod. vol. 8, p. 281. 'See the Court Rolls in the Chapter-house in box marked Lewisham and Greenwich. 10 Anno 1416, Patent Roll 3 Henry 5; 2 M. 30; also patent roll 2 Hen. 6, p. 4, M. 15. "Anno 1466, Pat. 5 Edw. 4, p. 11, M. 15. 15 Sep. 23 Henry 8. See the Deeds in the Chapter-house among the papers intituled Lewisham and Greenwich. In pursuance of this agreement the said Prior and Convent by Deed under their Common seal bearing date the 1st of November in the 23rd year of his reign gave and granted the aforesaid Manors or Lordships of Lewisham and East Greenwich with the Appurts (Except as in the Indre of 5th September 23 Henry 8 is excepted) To hold to the said King his heirs and assigns for ever; which grant or surrender was acknowledged in chancery the 22nd December following." And they also delivered up several Deeds Charters Court Rolls Rentals and other Writings belonging to the said Manors which now remain on record in the Treasury of the Chapter house belonging to the Court of Exchequer." King Henry 8th being fully possessed of the said Manor Palace and Park with all the Courts Royalties and Jurisdictions thereunto belonging and the Old Royal Palace of Eltham being at this time fallen to decay and neglected this King added many sumptuous buildings and ornaments to Greenwich and made it one of his favorite Palaces. He also changed the site of the Manor from Maner de East Greenwich (as it was stiled in the Court of Rolls from Edward the First's Reign to this time) to Manerium Regalem de East Greenwich and afterwards to Honorem et Manerium Regal de East Greenwich in Com Cantio.15 In the 27th year of the said King he became possessed of all the Lesser Monasteries and by statute 27 Hen: 8 Cap 27 it is declared and enacted that upon all grants of Lands of inheritance of the said Monastic Estates there should be reserved to the Crown a Tenure by Knights service in capite which being tho' an Antient and Royal yet a burthensome Tenure in attending the King in his warlike Expeditions suing out Livery of their lands and making Fines for Licenses or pardons for Alienations could not be bore by Grantees of lands of small value so in the 35 year of the same King an Act passed to enable the said King in his grants of the said Monastic Estates to reserve a tenure by Knights service in capite or else a Tenure in soccage and free burgage and not in capite at his will and pleasure provided such estates did not exceed the clear yearly value of 40 shillings." Tenure in soccage or Burgage and not in capite or by Fealty only as of any his honours Manors and lands and not in Capite." By the statute of the 1st of Edward the 6th it was enacted that all Estates (of whatever yearly value) holden of the King his heirs and successors by Knights service soccage or otherwise as of any of his or their Dukedomes Castles or Manors which came to the Crown by means of any dissolution surrender attainder Conviction or Outlawry shall not from thenceforth be adjudged or taken to be holden in capite or as Tenure in capite.1 By these steps and degrees the subjects of this Kingdom obtained this most liberal tenure to hold as of some honour Castle or Manor belonging to the Crown. Because by this statute tho the Tenure was in Capite yet if it was held as of some of the Kings Honors or Manors the tenure in chief was destroyed, and it should be deemed a Tenure in soccage and from hence came that prevailing Tenure not only in this Kingdom but in other Countries Tenendum de nobis et heredibus etc in Liber et communi soccagio per Fidelitas tantum ut de manerio pro de East Greenwich in Com Kantio. What the rights and privileges of this Manor are what rents and services of free and customary tenants what wasts and Commons what Courts Royalties Jurisdictions and Privileges of right belong to this Manor and to the Tenant's holding thereof ought therefore with care to be ascertained and defended They are become by these accidents of great concern and the Public are interested in them at least all persons whose estates are held as of this Manor the freedom of whose tenure is derived from it. If the Royalties Courts and privileges of the Manor are suffered to be encroached and lost on what foundation do their Tenures stand who hold as of this Manor which is extinct and lost. It would breed confusion in the Tenures if not destroy them. It appears by the Court Rolls of this Manor from the beginning of Edward 1st to the time of the purchase made by King Hen 8th That there was a Court Leet in which they presented heard and punished offences against the Peace pro traxatione Sanguinis pro Levatione Hute sif injusta Also for pourprestures on the Kings Wasts and Highways Rescues Homesokue and breaker of the assisa panis et Cervicio Also for the appointing and the amercing Officers Constables and Tithing "Survr. to the King I Nov. 23 Hen. 8 in the Men; and fined and amerced Defaulters for not Chapter-house. And by an Act passed 37 Hen: 8th this power was extended to all lands not exceeding 40' per annum by whatsoever title they came to the Crown. And that his Maj'y might reserve a attending the Courts." They had also a Court Baron in which they received the homage of Tenants tried pleas for small debts also pleas of trespasses and damages done to the Lord or to one another in their corn cattle or other part of their estates which were not of consequence enough to be carried to the higher Courts and levied their fines and amerciaments after they had been offered and set in misericordia. They had Waifs Estrays Deodands Reliefs Herriots and Game and presented and amercied encroachments in the Lords lands or soil and many other such like powers and privileges for the mutual benefit of Lord and Tenant were subsisting in the Manor at the time the Crown obtained it by the exchange before mentioned.20 From this time the Manor was held in the hands of the Crown with intent that the rights and royalties tenures and services might be better supported and maintained and the Courts were held by High Stewards appointed by the Crown or their Deputies but they did not take that care that was requisite therein and was intended by the Crown. It sometimes happened that the persons intrusted with holding the Courts of the Manor were also Lessees of the demesnes And though the Royalties of the Manor are quite separate and distinct from the occupations of the Demesne lands yet I find the greater part of the encroachments complained of have arisen from that quarter. Upon the whole it appears from the evidences abovement'd that the Manor and Demesne's of East Greenwich in their full extent were vested in the Church in very early times and continued there till the Dissolution of the Friers Aliens in the 3rd of Henry the 5th. That Humphrey commonly called the Good Duke of Gloucester obtained part that estate and built a Palace and enclosed the Park which afterwards reverted to the Crown. That what remained was given by the said King Henry the 5th to the Priory and Convent of Sheen in Surrey. And was purchased in by King Henry the 8th in exchange for other lands in the 23rd year of his Reign. That this prince made it a place of residence for the Royal Family Erected it into an Honour and on granting the Monastic Estates changed the several tenures in Capite into soccage tenure To hold as of some of his Honors Castles or Manors. And that the most prevailing tenure was ut De Manerio pro de East Greenwich in com Canc which by these accidents is become a Manor from whence AN OLDER MEMORANDUM OF COUNSEL TO THE CROWN, FOUND IN H. M. OFFICE OF WOODS AND FORESTS. After that vast acquisition of Lands and power made by King Henry 8 by the Dissolution of Monasteries He very prudently and politically passed many of these estates to his Subjects either for a valuable consideration paid to him in money or as in exchange for other lands or granted them as marks of his favour and bounty; These grants being made by the great King in the plenitude of his power when all his Servants and Favorites as well as the rest of the nation were looking towards him as the fountain of bounty and plenty He passed the lands to them upon the most Royal Tenure that is by Knights' service in Capiti and a tenth of the value in money and happy they who could get them even upon these terms." Not many years passed before the subjects who had procured these lands tho' upon the sad and servile tenure of attending the King on all his warlike expeditions became weary of this dependence and began to wish to enjoy their acquisitions in peace and quietness at home not quite so bad but somewhat like the Monks and Fryers whose estates they now enjoyed. The first step they took towards this with this great Prince and Monarch was to petition him that the purchasers of lands under 40 s. per annum being small Quillets of land on which they were not able to maintain their poor family and pay their rents and do the services reserved for the same might be permitted to hold them if it was the King's pleasure to grant them either by Knights service in Capiti or in soccage or free burgage and not in Capiti and the yearly rent of a tenth part." This act was the first step obtained by the new Patentees and tho' it was no great conquest yet it was breaking the Ice and preparing the way for something better and accordingly they attacked again in formâ pauperis as Patentees of lands not above 40 s. per annum by whatever Title the 21 27 Hy. 8. 22 35 Hy. 8. same came to the Crown and obtained an Act to confirm all those Letters Patent whether it should be his Majesty's pleasure to grant them by fealty only or by fealty and not in capiti or in soccage or free burgage or to hold by fealty as of any of his honours Manors or lands should be adjudged and taken to be held in soccage and not in capiti." This pretty well quieted the people as to the tenures in capiti and silenced the nice distinction of the lawyer and Casuists as to that matter seeing that even where a Tenure had been expressly granted in capiti if it was to hold as of any of the Kings Honors Castles or Manors it should be deemed a tenure in soccage and not in capiti. But one thing had now remained unexplained which the Lawyer in the pleadings had reminded them of and no time so proper as the present to obtain it. This was that in many of the Lrs Patent the tenths had not been reserved wherefore it was enacted and declared that all Letters Patent under the Great Seal of England or the Great Seal of the Duchy of Lancaster shall be good perfect and available in law to all intents and purposes, accord King as Duke of Lancaster or any Act Statute or This was a great point gained and comprehended all the lands under 40 s. per annum that had come to the Crown by Escheat forfeiture per treason felony Dissolution surrender or otherwise or other land that had been granted as part of the antient demesne but this Act was only temporary from 24 April 35 H. 8 for 5 years from the pass. the Act. In the first year of Edward the V1 the new patentees and proprietors of these lands began to speak plain and tell the Crown in directing to the said Letters Patent The homage of the terms what they wanted. The late King knew his power and preserved it pretty well during his life having it in his power to gratify his subjects with parcells of his large acquisition, but these being pretty well dispersed among his people he found himself left with all the incumbrances of courts and officers but the Revenue was so far dissipated in about ten years that he could not well support his late erected courts of Augmentation Surveyor General Court of Wards and first fruits and tenths with all their Chancellors Treasurers Surveyors Attorneys and Solicitors Auditor's Clerks Messengers and other Officers and Regalia thereto belonging. And was forced to come again to his Parliament for his subsidies and fifteens once or twice before he died, and I presume on these occasions his people gained the points before mentioned. Now was a Minor King and consequently a Ministry that must oblige and gratify the people in any reasonable requests for which they had been preparing the way in the late King's time. And in the first year of Edward the 6th on complaint that the Lawyers and Pleaders raised doubts about the Titles and Tenures of their lands whether they could be discharged of tenure in capiti which were holden of the King as of his Duchess Baronies Honors or Manuers which came to the Crown by attainder Outlawry or other Royal means or by dissolution or surrender of the Religious houses. Wherefore that his people might know the certainty of the Law relating to the tenure of their estates and that a plain Declaration and Resolution might be had concerning them It was Declared and Enacted That any lands holden of the King by Knights service soccage or otherwise as of any of his Honours or Manors which came to the Crown by Escheat forfeiture treason dissolution or surrender should not be deemed and taken from thenceforth to be holden in capiti or as tenure in capiti." From hence it appears that the safest and best Tenure for a Grantee holding of the Crown is to hold as of some Honour Castle or Manor because in that case because they are freed from the services of Royal tenure from attending the King in his warlike expeditions sueing out livery making fines licences or pardons for alienation &c and carrys the matter so far that tho the Tenure were reserved and treated in capiti yet its being holden as of a Manor frees it from and destroys the Tenure in Capiti and brings it to soccage by the Stat: 1 Edward VI. The 37 Hen. 8 began this tenure ut de manerio but this only extended to Estates of the Monasteries under 40 S per annum from which Knights' service could not be expected but it was soon extended to all estates of any value and from what quarter soever they came to the Crown. And from this fountain came as I conceive the several Tenures. To hold of the King as of his castle of Windsor or as was more frequent of his Manor of East Greenwich if the land were within the survey of any of the Courts now annexed to the Court of Exchequer and to hold as of his Manor of Enfield in the County of Middx if they were within the survey of the Duchy of Lancaster." From these old opinions it would seem clear that the original purpose in making new crown grants to be holden as of a particular royal manor was to free the lands granted from the feudal burdens or the old tenure by knight-service, under which tenure all the old grants that came to the crown by the dissolution of the lesser monasteries in the reign of King Henry VIII had to be granted. This object of the clause in question was finally, by the celebrated Statute 12 Car. II, c. 24 (A. D. 1660), made obligatory on the crown. This statute converting all feudal tenures into * tenures by free and common socage expressly The object of the tenendum clause in the Duke of Yorks patent of 1064 for New York then, irrespective of the act of 1000, seems clear. It was to conier on the patentee the best tenure then known and to assure to him treedom from the burdensome incidents of a tenure by chivalry, of which knight-service was only one species. Or else, as is more probable, the draitsmen servilely conformed to older precedents without any very dennite purpose in so doing. In either event, there was probably nothing gained and nothing lost by the draftsman's thus conforming to a precedent which after the year 1000 had lost much of its original meaning, for knight-service was then abolished and the tenure of New York must have been socage by express provision of the statute, as the statute was binding on the crown and intended so to be. By that custom, it will be remembered, lands descended to all the sons, but females were excluded from the inheritance. It is quite true that gavelkind is always presumed to prevail in Kent as to all lands, until the contrary is shown (Rob. Gavelkind, 54; Sandys, Gavelkind, passim.), and it is equally true that the royal manor of East Greenwish was in Kent, and that its customs are not now ascertainable. After some years of research the present writer concluded that the customs of that manor as to inheritances among the tenants could not be affirmatively established." Since the foundation of Greenwich Hospital on the site of the old palace, and the construction of the Royal Observatory in Duke Humphrey's park, it is probable that there have been no tenants holding by suit and service of this manor and no manor court. The old records of that court are now lost, or at least no one seems to be aware of their existence. But though this is true, there is negative evidence that gavelkind never existed in the royal manor of East Greenwich. Had it done so, it is fair to assume that some of the early lawyers in the colonies, islands or provinces in America would have made out to establish the fact, for at The tenendum clause of the Duke of York's that time the manor customs could have been patent was probably never intended to introduce easily shown. The fact that in all the colonies particular customs of the manor of East Green-held as of the manor of East Greenwich primowich into New York, but simply to denote the geniture was a rule of descent" and not gavelkind quality of the tenure. The patent must be read is pretty persuasive of the conclusion that gavelas a whole, and in its context there is abundant kind did not prevail in this royal manor in quesevidence that the common law of England, in its tion. Royal manors differed in this respect probgeneral extent and not in its local exceptions, was ably from other manors even in Kent. It would intended to be applied to the province of New certainly seem more consistent with the dignity York. Certainly such a construction prevailed of the crown that the general common law of the prior to the abolition of the common law of realm, and not a local custom, should prevail in a descents in 1782, and it is rather a late day to royal manor concerning inheritances. contend that gavelkind furnished the rule of descents when the general common-law rule was always applied. It will be not forgotten that many of the British provinces, including New York, were seigniories,” or subordinate States, modeled after the feudal counties palatine, in which the patentee exercised certain regalities, but always in subordination to his sovereign. Of course, the royal grants of the latter part of the seventeenth and the eighteenth centuries were not strictly feudal seigniories, for the feudal system had then been abolished. They were simply semi-political estates established after a feudal model. The mere fact that the patent for New York provided that the Duke of York was to hold it of the crown," as of the Manor of East Greenwich," did not serve to introduce here the custom of Kent known as gavelkind, as erroneously asserted in the case mentioned at the outset of this paper. Penn v. Lord Baltimore, 1 Ves. Sr. 444; case of the County Palatine of Wexford, Davies' (Irish) Report, 159. 30 But whether or not the inferences just stated are correct, it is certain that primogeniture was from 1664 the rule of descents among the English in New York until its formal abolition in 1782, and after so great a lapse of time rules of law well established should not be disturbed under the principle, "communis error facit jus." Story states that no traces are to be found in America of gavelkind," and distinctly that primogeniture and not gavelkind prevailed in New York," and a like statement is made by Kent and other authors, 33 |