diligence of the Germans French Italians and other Nations in publishing the Histories and Decrees of their respective Synods whilst the English who had a greater plenty of Evidences both in Ecclesiastical and Civil affairs than any of their Neighbours had never so much as attempted such a publick Service to their Church Upon that occasion the good Bishop desired Dr. Wren that for the credit of the Kingdom and the honour of Religion he would think of such an Undertaking and lest it should prove too tedious for any single hand that he would draw to his assistance a convenient number of Men of sufficient Learning and Judgement for a Work of that nature Upon this request he promis'd to consider of it and had proceeded but that the Bishop excus'd him upon an assurance that Sir Henry Spelman was engag'd in the same design Sir Henry having been told this passage by the Bishop of Norwich with great modesty express'd his concern for taking the Work out of much abler hands But since it had hapen'd so he did not any longer look upon it as a matter of choice whether or no he should go forward but thought he was bound in justice to make the best satisfaction he was able for depriving the Church of the joint labours of so many Learned Men. He branch'd his Undertaking into three parts assigning an entire Volume to each Division 1. From the first Plantation of Christianity to the coming in of the Conqueror in 1066. 2d From the Norman Conquest till the casting off the Pope's Supremacy and the dissolution of Monasteries by King Henry VIII 3d. The History of the Reform'd English Church from Henry VIII to his own time The Volume containing the First of these Heads was publisht in the Year 1639. about two years before his death with his own Annotations upon the more difficult places He confesses that it would have been impossible for him to finish it without the assistance of his own son and Mr. Jerem Stephens Of the former of these we have occasion to speak more at large among Sir Henry's children and also of the latter upon occasion of some papers that he left at his death to the care of that Learned Gentleman Only it may be proper to observe in this place that Arch-bishop Laud procur'd for him a Prebend in the Church of Lincoln for his assisting in the publication of the First Volume of the Councils And Sir Henry does in effect recommend to him the preparing the Second and Third as a person every way qualified to compleat the Design The Author honestly tells us that in such a confusion of thoughts and papers he had omitted the accounts of some Synods which he had ready by him that he had receiv'd Observations from many Learned persons after the Press was gone too far to have them inserted and that particularly the Learned Primate of Armagh had communicated his Animadversions upon the whole Volume I have seen among his own papers the Remarks of Salmasius and De Laet but where the rest are to be met with I cannot tell Out of these the Corrections and Additions that he himself had made he resolv'd to publish an Appendix to the Tome but I suppose was prevented by death However to encline the Reader to a favourable interpretation of the omissions or imperfections of his Work he desires him to consider that most of his Materials were to be fetch'd from Manuscripts whereof indeed there were very great numbers both in the Universities and other parts of the Kingdom but being neglected by the generality of Scholars they lay in confusion and were in a great measure useless to his or any other Design At that time this was a just and proper Apologie but our Age is much more curious in those matters Witness that noble Catalogue of Manuscripts which we daily expect from the Oxford Press and a Volume of the same kind intended by the University of Cambridge The Second Volume of the Councils at the same time with the second part of the Glossary was put into the hands of Sir William Dugdale by the direction of Arch-bishop Sheldon and Chancellor Hyde He made considerable Additions to it out of the Arch-bishop's Registers and the Cottonian Library so that he affirms in a Letter to Mr. Spelman Grandson to Sir Henry That of the 200. sheets in that Book not above 57. were of his Grandfather's collecting And it appears from the Original in the Bodleian Library under the hands of Sir Henry Spelman and Sir William Dugdale that the former had left little more towards the second Volume than hints and references where the Councils were to be met with It was publisht in the Year 1664. but with abundance of faults occasion'd by the negligence either of the Copier or Corrector or both Mr. Somner sensible of this took great pains in collecting the printed Copy with many of the Original Records correcting the Errors in the margin of his own book This is now in the Library of the Church of Canterbury and will be a good help towards a more accurate Edition as well as those collections of Mr. Junius in the possession of Mr. Jones of Sunningwell The truth is we very much want a new Edition the greatest part of the Impression having been burnt in the Fire of London so that the Book is hardly to be met with and uncorrect as it is has ever since bore an immoderate price I know no Work that would be a greater service to our Church than an entire History of all the Councils before the Reformation for the account of 'em which we have already is far from being entire with the Addition of a Third Volume to contain the Publick Affairs of our Reform'd Church It is probable that towards this last part some assistance may be had from that Manuscript of Sir William Dugdale's entitl'd Papers to be made use of for a Third Volume of the Councils tho' I fear not so much as the title promises The great discoveries of Manuscripts the many observations that have been made by the Learned Bishop of Worcester and others upon the Constitution of the British and Saxon Churches and the general approbation that the Work must needs meet with are all of 'em very good Encouragements to such an Undertaking Next to his Glossary and Councils we are to give an account of that part of his Works wherein he asserts a due Veneration to Persons Places and Things consecrated to the service of God The first that he publisht of this kind was his noted Treatise De non temerandis Ecclesiis printed at London in the 16â—3 and afterwards at other places It was written as the title informs us for the sake of a Gentleman who having an appropriate Parsonage employed the Church to prophane uses and left the Parishioners uncertainly provided of Divine Service in a Parish there adjoining The two Oxford Editions came forth with a large Preface by his
to the Grant whether it be a part of the Grant and the modus concessionis or whether it be a distinct thing and Aliud from the Grant For so the Printed Case represents their Opinion if the Reservation of the Tenure and the Grant of the Land be aliud aliud two distinct things in the consideration of the whole Grant made and the authority given by the said Commission for the making thereof then the Patent may be void as to the Tenure and yet good for the Grant of the Land But if the Reservation of the Tenure be incident unto the authority and included within it and the Reservation of the Tenure and the Grant of the Land make up but one entire Grant so that the one is a part of the other and the Reservation of the Tenure be Modus concessionis then the granting of the Land reserving a diverse or contrary Tenure to that which their nude authority did warrant them to reserve is a doing of Idem alio modo and so the whole Act is void They who pleaded for the validity of the Letters Patents as to the Lands and their being void only as to the Tenure urg'd among other arguments That Tenures in Capite were brought into England by the Conquest but Grants were by the Common-Law and therefore Grants being more ancient than Tenures the Tenure must of necessity be aliud from the thing granted And to prove that this Tenure came in with the Conqueror they cited Mr. Selden in his Spicileg ad Eadmerum p. 194. where he hath that out of Bracton de Acquir Rerum Dominio b. 2. Forinsecum servitium dicitur Regale servitium quia spectat ad Dominum Regem non ad alium secundum quod in Conquestu fuit adinventum But this Argument and the Authority were both over-ruld and it was affirm'd that Tenures were not brought into England by the Conqueror but were common among the Saxons Their Answer to Mr. Selden's Opinion with the Reasons upon which they grounded their position I will transcribe at large from the Printed Case the Book being very scarce and this the only Point wherein Sir Henry Spelman is concern'd It was answered that Mr. Selden in that place does barely recite the words of Bracton not delivering any Opinion of his own For in that Book cited pag. 170. and in his Titles of Honour the last Edition p. 612. We find that he was of another Opinion and that this Tenure was in use in England in the times of the Saxons What were those Thani Majores or Thani Regis among the Saxons but the Kings immediate Tenants of Lands which they held by personal service as of the Kings person by Grand Serjeanty or Knights-service in Capite The Land so held was in those times called Thain-land as Land holden in Socage was called Reveland so frequently in Dooms-day Haec terra fuit terra Regis Edwardi Thainland sed postea conversa est in Reveland Cokes Instit Sect. 117. After some years that followed the coming of the Normans the title of Thane grew out of use and that of Baron and Barony succeeded for Thane and Thain-land Whereby we may understand the true and original Reason of that which we have in the Lord Cromwels Case 2. Coke 81. That every Barony of ancient time was held by Grand Serjeanty by that Tenure were the Thain-lands held in the time of the Saxons and those Thain-lands were the same that were after called Baronies 'T is true the Possessions of Bishops and Abbots were first made subject to Knights-service in Capite by William the Conquerour in the fourth year of his Reign for their Lands were held in the times of the Saxons in pura perpetua Eleemosyna free ab omni servitio saeculari But he then turned their Possessions into Baronies and so made them Barons of the Kingdom by Tenure so that as to them this Tenure and Service may be said to be in Conquestu adinventum But the Thain-lands were held by that Tenure before As the Kings Thane was a Tenant in Capite so the Thanus mediocris or middle Thane was only a Tenant by Knights-service that either held of a mean Lord and not immediately of the King or at the least of the King as of an Honour or Mannour and not in Capite What was that Trinoda Necessitas which so often occurs in the Grant of the Saxon Kings under this Form Exceptisistis tribus Expeditione Arcis pontis exstructione See it in a Charter of King Etbeldred in the Preface to Cokes 6. Report c. But that which was after expressed by Salvo forinseco Bracton lib. 2. cap. 26. 35. 12. Edw. 1. Gard 152. 26. Ass 66. Selden Analect Anglobrit 78. And therefore it was said that Sir Henry Spelman was mistaken who in his Glossary verbo feudum refers the original of Feuds in England to the Norman Conquest It is most manifest that Capite Tenures Tenures by Knights-service Tenures in Socage Frank-almoigne c. were frequent in the times of the Saxons And if we will believe what is cited out of an old French Customary in a MS. Treatise of the Antiquity of Tenures in England which is in many mens hands all those Tenures were in use long before the Saxons even in the times of the Britains there it is said The first British King divided Britain into four parts And gave one part to the Arch-Flamines to pray for him and his posterity A second part he gave to his Earls and Nobility to do him Knights-service A third he divided among Husbandmen to hold of him in Socage The fourth part he gave to Mechanical persons to hold in Burgage But that Testimony was wav'd there being little certainty or truth in the British Story before the times of Caesar Neither would they make use of that which we are taught by William Roville of Alenzon in his Preface to the Grand Customier of Normandy that all those Customs among which these Tenures are were first brought into Normandy out of England by Edward the Confessor Besides that which hath been said we find Feuds both the name and thing in the Laws of those times among the Laws of Edward the Confessor cap. 35. where it is thus provided Debent enim universi Liberi homines secundum feodum suum secundum tenementa sua Arma habere illa semper prompta conservare ad tuitionem Regni servitium dominorum suorum c. Lambard Archaionom 135. This Law was after confirmed by William the Conqueror vid. Cokes Instit Sect. 103. As these Tenures were common in those times so were all the fruits of them Homage Fealty Escuage Reliefs Wardships For Releifs we have full testimony in the Reliefs of their Earls and Thanes for which see the Laws of King Canutus cap. 66 69. The Laws of Edward the Confessor cap. de Heterochiis And what out of the Book of Dooms-day Coke hath in his Instit Sect.
lands and portion of the Levites was given to do the service of the Tabernacle the lands of the other tribes to fight the battels of the Lord against his idolatrous enemies and to root them out Thus may fancy couple the remotest things To come lower down and nearer home Pausanias tell 's us that when Brennus who they say was a Britain invaded Greece with an army of Gauls every horseman of the better sort had two other horsemen to attend and second him as his Vassals and they three together were called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Trimarcesiam i. e. a society of three horsemen But Caesar saith that the nobler Gauls in his time had according to their abilities many horsemen attending them in war whom by a German word he calleth Ambactos which properly signifieth servants vassals workmen and labourers yet he by a fairer name expoundeth it there in Latin Clientes and in another place calleth them among the Germans Comites familiares as accounting them like Abraham's 318. Souldiers to be all their Lord's followers and of his family Tacitus likewise nameth them Comites as companions and followers quod bello sequi Dominum coguntur saith Cujacius But Tacitus further saith Gradus quinetiam ipse Comitatus habet judicio ejus quem sectantur that there were degrees in those companies as he whom they followed did appoint Like them perhaps in after-ages of Earls Barons Knights c. But how the Comites or Ambacti were maintained neither Caesar nor yet Tacitus have related As for such portions of land as we call Knights-Fees they could not then have any for Caesar speaking of the Germans saith and so it appears by Tacitus neque quisque agri modum certum aut fines proprios habet c. That no man hath any certain estate or peculiar bounds of lands but the Magistrate and Lords of the place assign from year to year to kindreds and such as live together what quantity of land and in what place they think good and the next year force them to remove The reason you may see in Caesar who also sheweth That they had no common Magistrate but the Lord of the Town or territorie set what laws he would among his followers or Ambactos These laws the Goths the Swedes the Danes and Saxons called Bilagines of By which in all these languages signifieth a town and lagh or laghen which signifieth laws as Gravius Suecus and our Saxon Authors testifie And tho' Jornandes a Spanish Goth writeth it after the Spanish corruption Bellagine◠yet we in England keep the very radix and word it self By-laws even unto this day tho' diverted somewhat from the sense that Caesar speaks of For we call them Town-laws or By-laws which the Townsmen make among themselves but Caesar sheweth that the Lords imposed them Herewith agreeth that of Tacitus or some other Ancient who speaking of the Germans saith Agricolis suis jus dicunt They give laws to them which dwell upon their lands For I take Agricolis here in the larger sense to extend to all that dwell upon the Lord's lands as well his military followers as his husbandmen in the same manner as solicolae containeth all that live upon the soil ruricolae all that live in the Country and coelicolae all that live in heaven These Lordships of Towns which Caesar speaketh of were after by the Normans called Maneria The Ambacti or Comites and these which he saith sectabantur Dominos suos were called Vassalli and sectatores manerii sive Curiae Domini Vassals and Suiters of Court The Bilagines or Town-laws were called Consuetudines and customs of the Mannor The jurisdiction which the Lord had over his followers and suiters was called the Court Baron and the portions of land c. assigned to his followers for their stipend or maintenance were at first called Munera after Beneficia and lastly Feuda or Tenant-lands which were of two sorts one for military men called Feudum militare and Feudum nobile tenure by Knights-service the other for husbandmen call'd therefore Feudum rusticum ignobile tenure in Socage or by the Plough Thus it appeareth that Feuds and Tenures and the Feudal law it self took their original from the Germans and Northern Nations In such condition therefore how obscure soever as Caesar and Tacitus left them to us Gerardus Niger the Consul of Milan who flourished about A. D. 1176. and first composed them into a book taketh them up as he there findeth them and speaking of the times of Caesar and Tacitus as having the forementioned passages under his eye saith Antiquissimo tempore sic erat in Dominorum potestate connexum ut quando vellent possent auferre rem in feudum à se datam And this agreeth with Caesar by whom it seemeth in the places before mentioned that the Ambacti or followers of the Germans had in those times either no land at all or no estate at all in their land or first but at the will of the Lord and then but for one single year Which Gerardus also confesseth to have been the condition of the eldest sort of feudataries for he saith presently after his former words Postea vero eo ventum est ut per annum tantum stabilitatem haberent res in feudum datae Thus for another while their Feudal Vassals whom here he calleth fideles and we now tenants by Knights-Service enjoyed their feuds no otherwise than from year to year at the pleasure of their Lords either by grant or sufferance till further grace confirmed them to them for divers years and at length for term of life which Gerardus also presently there declareth saying Deinde statutum est ut usque ad vitam fidelis producerentur feuda In this manner stood the principal feuds themselves even those of Earldoms and Dukedoms which they call feuda majora and feuda regalia in the latter time of the Saxons till the coming of the Conquerour But as touching the lesser feuds which we call Knights-Fees I find nothing in abby-Abby-books otherwise than a numerous multitude of Leases and Grants made by Bishops and Abbats to their followers for term of life without mention of Tenure or Feudal service Yet I must confess that there is a notable precedent left us by Oswald Bishop of Worcester in the time of King Edgar who in granting out the lands of his Bishoprick unto his followers for life or three lives imposed upon them by a solemn Instrument ratified by the King himself a multitude of services and charges as well military as civil which after you shall here see and then consider how and whether they conduce to our Feuds or not If we understand them to be Feuds among the Saxons or of that nature then are we sure they were no more than for life and not inheritable nor stretching further without further grace obtained from the Lord.
For which purpose Conradus Salicus a French Emperour but of German descent going to Rome about fourty five years before the time of our King Edgar viz. sub An. Dom. 915. to fetch his Crown from Pope John X. made a Constitution upon the petition of his Souldiers That filii or aviatici the sons or if no Sons were living the Nephews or Grandsons as they call them of some of them should succeed in the Feud of their Father See the Constitution in the beginning of the fifth book of Feuds But Gerardus noteth that this law settled not the Feud upon the eldest Son or any other Son of the Feudatarie particularly but left it in the Lord's election to please himself with which of them he would After this Feuds were continued in divers places by several increments to the third fourth fifth sixth and seventh generation and sometime for want of lineal issue collaterally to the brother as Gerardus testifieth but whether by some positive law or by the munificence of the Lords he doth not tell us nor when or by whom they were made perpetual and hereditary tho' he confesseth that at last they grew to be extended in infinitum and then they began to be settled upon the eldest Son who formerly had no preheminence above a younger brother But while they stood sometimes produced in this manner by the indulgence of Princes to the third fourth or fifth generation c. some men of learning have concluded them to be hereditary as tho' there were no medium between a limitation how far so ever extended and infinitum To pass by that let us now go on in examination when and how Feuds became Hereditary Some suggest a shew of such a matter under the two Othones German Emperours who succeeded one the other about the year 973. But to rest upon the common and received opinion which we shall hereafter more at large declare the truth is that when Hugh Capet usurped the Kingdom of France againgst the Carolinges he to fortifie himself and to draw all the Nobility of France to support his Faction about the year 987. granted to them in the year 988. that whereas till then they enjoyed their Feuds and Honors but for life or at pleasure of their Princes they should from thenceforth for ever hold them to them and their heirs in Feudal manner by the Ceremony of Homage and oath of Fealty And that he would accordingly maintain them therein as they supported him and his heirs in the Crown of France which they joyfully accepted This was a fair direction for William of Normandy whom we call the Conquerour how to secure himself of this his new acquired Kingdom of England and he pretermitted not to take the advantage of it For with as great diligence as providence he presently transfer'd his Country-customs into England as the Black book of the Chequer witnesseth and amongst them as after shall be made perspicuous this new French custom of making Feuds hereditary not regarding the former use of our Saxon Ancestors who like all other Nations save the French continued till that time their Feuds and Tenures either arbitrary or in some definite limitation according to the ancient manner of the Germans receiv'd generally throughout Europe For by the multitude of their Colonies and transmigrations into all the chiefest parts thereof they carried with them such Feodal rights as were then in use amongst them and planting those rites and customs in those several Countries where they settled themselves did by that means make all those several Countries to hold a general conformitie in their Feuds and Military customs So by the Longobards they were carried into Italy by the Saliques into the Eastern parts of France by the Franks into the West part thereof by the Saxons into this our Britain by their neighbours the Western Goths who communicated with the Germans in manners laws and customs into Spain and by the Eastern Goths into Greece it self and the Eastern parts of Europe c. These I say carried with them into the parts of Europe where they settled such ancient Feudal customs as at the time of their transmigration were in use among them But the more prevalent and more generally receiv'd customs were those that were in use or taken up in the time of Conradus the Emperour and when Feuds became hereditary for on them especially is the Feudal Law grounded and composed tho' enlarg'd oftentimes by Constitutions of the Emperours and spread abroad into divers Nations by their example countenance or authority Wherein the Court of Milan was chiefly followed in rebus judicatis as appeareth by Duarenus and Merula but reserving unto every Nation their peculiar rights and customs For it was generally received into every Kingdom and then conceived to be the most absolute law for supporting the Royal estate preserving union confirming peace and suppressing robberies incendiaries and rebellions I conclude with Cujacius who upon the above-cited passages of Gerardus Niger saith Quam aliam Feudorum originem quaerimus His veluti incrementis paulatim feuda constituta sunt quae post Conradum usus recepit ut transirent ad liberos mares in infinitum c. The Military and Lay-Feuds being thus advanced from an arbitrary condition to become perpetual and hereditary did now in ordinary account leave their former name of Beneficia which were only temporary for years or life unto the Livings of the Clergy and retained to themselves the proper name of Feuds whereby they were produced to be perpetual and hereditary Cujacius therefore speaking of them both saith Feudum differt a beneficio quod hoc temporaneum fuit illud perpetuum And treating in another place of these beneficiarii and temporarii possessores he saith further Iisdem postea câ—pit concedi feudum in perpetuum quod est verum proprium Feudum Concluding in a third place that Propria Feudi natura haec est ut sit perpetua So that Cassineus in the Feuds of Burgundy saith that Omne Feudum quocunque modo acquisitum fit haereditarium cum successione sit redactum ad instar Allodialium That all Feuds by what means soever they be acquired are made hereditary in so much as by the continual succession of the children into the Feuds of their Fathers the Feuds are now brought to be like Allodial or patrimonial inheritances Thus Feudum which at first was but a tottering possession ad voluntatem Domini growing at length to be an irrevocable estate descending by many successions from son to son became at last to be an absolute inheritance and thereupon the words themselves Feudum and Haereditas in common use of speech Quem penes arbitrium est jus norma loquendi to be voces convertibiles and by a fair metonymia each to signifie other For as Horace further saith Verborum vetus interit aetas Et juvenum ritu florent modo nata vigentque Aptly
Christian King caused his own Laws to be put in writing about the year 605. as other Western Nations in an age or two before had done and as Bede saith wrote them in the Saxon tongue The first Charter if I shall so call it or writing touching lands and privileges was as a MS. of Canterbury reporteth made by Withredus King of Kent in the year 694. and as that Charter it self witnesseth was appointed to be kept in the Church of our Saviour at Canterbury as a precedent for posterity to imitate and tho' it appeareth not there in what language it was written yet I presume it was in the same with their Law which was the Saxon tongue For there be two copies of it extant in Latin so differing the one from the other as thereby they both appear to be translations For proof thereof the one of them useth the words Charta and Chartula which Ingulfus affirmeth to be brought in hither by the Normans that is above three hundred years after the time of this Charter of Withred's The other Latin copy termeth it Scriptum not Chartam and the Saxons themselves used neither of those words but called such writings in Latin Chirographos not Chartas as Ingulfus there also testifieth So that it hereby appeareth that the Prototype or first pattern of Charters which the Saxons imitated was not in Latin but in Saxon. Secondly it is therefore to be presumed and very strongly that tho' this Charter of Beorredus remaineth to us by a Latin copy yet the original it self like a thousand others was in the Saxon tongue Nor could it in all probability be otherwise for at the very time when it was made viz. in anno 868. learning was so generally subverted throughout England by the barbarous Danes that King Alfred who began to reign within four years after the date thereof saith Paucissimi fuerunt cis Humbrum qui vel preces suas communes sermone Anglico intelligere potuerant vel scriptum aliquod è Latino transferre Tam sane pauci fuerunt ut ne unum quidem recordari possum ex australi parte Thamesis tum cum ego regnare occaeperam But as their original Charters were in the Saxon tongue so in the leiger-Leiger-books in which they are preserved to us they are often set down in the Saxon and then because the books themselves are in Latin they are there translated also into Latin and often times set down in the Latin only without the Saxon as in the book of Ramsey-Abby which having no Charters in it in the Saxon tongue the Author of it saith that himself had there translated them all into Latin after that that Abby in the days of King Stephen had recovered her liberty Yet I deny not that Latin Charters might be often used by their latter Clergy-men when learning which in Beorred's time was utterly subverted began at last to recover life again Thirdly I conceive that the word feudum or feodum was not in use in Beorredus's days viz. anno 868. For proof whereof we are to consider the infancy youth and full age of the Feodal Law for according to these several times the Feodal Lands had their several denominations First they were called Munera then Beneficia and lastly Feuda as is aforesaid Marculfus who collected the Formulas or Precedents as we call them of Charters and Instruments of the time he lived in which was under Clodovaeus II. King of France about the year 660. maketh mention in his first book of Munera and in his second of Beneficia but no where of Feuda and he who a hundred years or more after him collected the Formula's incerti Autoris speaketh divers times of Beneficium but never nameth Feudum for that this term came not into use till afterwards when these Beneficia began to be granted in perpetuity Beneficium Regis saith Bignonius postea Feudum dictum est And in another place he saith Beneficii nomine ea praedia dicta sunt quae Feuda posteritas dixit initio namque vita accipientis finiebantur As if he should say they were called Beneficia when they were granted only for life of the Grantee but were called Feuda when they began to be granted in perpetuity and not before Cujacius therefore speaking of Feudatarii which word came into use with Feudum for Relatives mutuo se ponunt auferunt saith that when Actores custodesque proediorum nostrorum temporarii perpetui esse caeperunt c. when those who had the use and ordering of our Lands for a certain time began to enjoy them in perpetuity and yet retained their Latin name of Homines our Men they grew then also to be called after new and forreign names Vassalli Leudes and Feudatarii by the Princes and great Noblemen who choosed rather to grant them lands in perpetuity in consideration that they should do them military service And he saith that these names were first brought into Italy by the German Princes Where and particularly in Milan as Merula reporteth the Feodal Laws and Customs have had their original and from thence been propagated throughout Europe By this it appeareth that the words Feudum and Feudatarii were not in use till that the word Munera was grown obsolete Nor afterward till Beneficia leaving to be temporary or but for life became to be perpetual possessions which as I have often said was not long before the Conquest So that the word Feudum could not be in use in Beorredus's time who lived two hundred years before Fourthly Tho' the word Feudum were in the original Charter of Beorredus yet doth it not prove that our Feuds were then in use For call them Beneficia or call them Feuda certain it is that neither the one nor the other were then hereditary or perpetual but either temporary or for life only which at length begat the difference between Feuda and Beneficia for Beneficia in a restrained sense began to signifie no more than an estate for life in which sense it resteth at this day in our Clergy-men's Livings called Benefices and the word Feuda grew to be understood only of such Beneficia or Benefices as were perpetual and hereditary To return from whence we digressed I suppose it now appeareth sufficiently how some Feodal words are crept into Charters and writings of Saxon date and I think I may conclude that the words before mentioned Tenura tenentes tenementa tenere or tenendum in a feodal sense or feodum it self were not in use among them Much less Tenure in Capite Tenure by Knight-service Tenure in Socage or Frank-Almoign tho' the like services were performed to the Saxon Lordships by their Thanes and Theodens their Socmen or Husbandmen and their Beads-men or Clergy-men by way of contract for the lands received from them as were after the Conquest to the Norman Lordships by way of Tenure for lands holden of them The Neapolitan and Sicilian Constitutions which
had their original from Princes of Norman lineage do ..... the Conquest here in England make mention of tenens tenere tenementum and tenere de Rege in Capite but whether the Normans carried these terms into Italy when they Conquer'd Naples about the year 1031. or brought them from thence into Normandy I cannot determine Certain it is that from the Normans they came to us in England for being not met with before in any authentick Author we presently after the Conquest begin to hear of them even about the third or fourth year of the Conqueror's reign as appeareth by his Charter of Emendationes Legum in the Red book of the Exchequer f. 162. b. and in Lambard's Archaionomia CHAP. IV. Of Tenures in Capite more particularly TOuching Tenures therefore in Capite I think I may boldly say that here were none in England in the Saxons time after the manner now in use among us First For that their Feodal Lands as we have shewed were not descendible before the Conquest For tho' there were hlaâ—ord and ðane amongst the Saxons that is Lord and Thane or Servitour whom beyond the Seas they called Seigneur Vassall alias Vassallum Dominum Clientem while their feuds were arbitrable or but for years or life yet grew not the words of tenure into use till that Feuds became descendable to posterities and thereby obliged the whole succession of heirs to depend and hold upon their Capital Lords by the services imposed at the creation of that Feud Secondly The word in Capite is like a Relative in Logick which being a supreme degree of it self implieth some other degrees to be under it as Tenant in medio or Tenant in imo or both viz. Tenant in Capite Tenant in menalty and Tenant Paravale or at least Tenant in Capite and Tenant Paravale which inferiour Tenants could not be in the Saxons time for that the granting of Feuds in perpetuity out of which the under-Tenancies must be deduced was as I have said not yet in use Thirdly to hold in Capite is of two sorts The one general which is of the King as Caput regni caput generalissimum omnium Feodorum the fountain whence all feuds and tenures have their main original The other special or subaltern which is of a particular subject as Caput feudi or terrae illius so called because he was the first that created and granted that feud or land in that manner of tenure wherein it standeth and is therefore at this day so to be understood by the ordinary words in our Deeds of tenendum de Capitalibus Dominis feodi illius c. signifying that the lands so granted since the statute of Quia Emptores terrarum must now be holden mediately or immediately of him or his heirs or assigns that was Caput Feodi the first that created or granted that Feud in that tenure who thereupon was called Capitalis Dominus Caput terrae illius among the Feudists Capitanus feudi illius And the Grantee and his heirs were said to be Tenants in Capite because they held immediately of him that first granted that feud or land in that manner Hereupon David I. King of Scots and Earl of Huntingdon here in England was in right of his Earldom in the time of King Henry I. said to be Capud terrae de Crancfeld Craule post regem Angliae And Roger de Molbray about the same time or shortly after made a grant in these words Roger de Molbray omnibus hominibus fidelibus suis Normannis Anglis salutem Sciatis quod ego concessi Roberto de Ardenna Clerico amico meo totum nemus de Bedericheslea cum omnibus antiquis libertatibus consuetudinibus ejusdem nemoris ad tenendum de me in Capite haeredibus meis ita libere quiete c. sicut ego unquam c. The Deed is without date but note that the direction of it is Omnibus hominibus fidelibus suis Normannis Anglis which implieth that it was made before Henry II's time for he being of Anjou in France and bringing in French-men with him altered then very properly the directions of Charters into Hominibus fidelibus suis Francis Anglis Yet I find the same direction tho' more improperly to be some time used under the Norman Kings Qu. So likewise as before W. Marshall the great Earl of Pembrock in a Charter of his useth these words about the beginning of Henry III's time as I take it Nisi fortè forinseca tenementa tenueris de me in Capite And Mat. Paris in An. 1250. making mention of one G. a Knight saith that Rex memoratus Hen. III. cuidam militi tenenti de Ecclesia S. Albani in Capite c. warennam concessit where the words tenenti de Ecclesia S. Albani in Capite do signifie that some Abbat of the Church of St. Alban first created and granted that Feud Having thus in general manner prepared my way to the ensuing discourse I shall now God willing by the patience of them whom it most concerneth examine such particular assertions as are produced in the Report either to prove our Tenures and Feuds with their dependancies to have been in use among the Saxons or to disprove what I have affirmed in my Glossary or in the Chapters here precedent and will first shew therein as followeth CHAP. V. What degrees and distinction of persons were among the Saxons and of what condition their lands were FOr the better understanding of our discourse it is necessary that we should shew what degrees and distinctions of persons were among the Saxons and of what condition their lands were Touching their persons they are by themselves divided in this manner Eorle and Ceorl and Ãegn and Ãeoden In Latin Comes and Villanus Tainus unus alius singuli pro modo suo That is to say the Earl and the Husbandman the Thane of the greater sort called the King's Thane and the Thane of the lesser sort called the Theoden or Vnder-thane More degrees the Saxons had not in their Laity and among these must all the tenures lye that were in use with them As for their bond-men whom they called Theowes and Esnes they were not counted members of that Common-wealth but parcels of their Master's goods and substance Touching lands among the Saxons they were of two sorts Bocland and Folcland Bocland signifieth terram codicillarem or librariam Charter-lands for the Saxons called a Deed or Charter an bec i. e. librum a book and this properly was their terra haereditaria for it commonly carried with it the absolute inheritance and propriety of the Land and was therefore preserved in writing and possess'd by the Thanes and Nobler sort as proedium nobile liberum immune a servitiis vulgaribus servilibus In which respect the Thanes themselves were also called liberales as appeareth by Canute's Forest-laws Art 1. 3.
his great knowledge and that he liv'd nearer to the Conquest by two third parts of the time than we do Well there is yet an elder and one that might see some that liv'd in the Conqueror's time the Author of the Black-book of the Chequer who speaking of the Saxon Laws and those of the Conqueror saith Cap. 16. fol. 16. b. Quasdam reprobavit quasdam autem approbans illis transmarinas Neustriae id est Normanniae leges quae ad regni pacem tuendam efficacissimae videbantur adjecit What were those Neustrian Laws or what could they be in all the books of the Law for preserving peace save Military Tenures And the Exchequer it self where the cognisance of all these Tenures lyeth was brought in also by the Conqueror But Ingulphus the Abbot of Croyland liv'd long in the Conqueror's time and was one of his Domesticks or Familiars as he termeth himself And by him it appeareth that the Conqueror not only generally dispossess'd the Saxons and gave their lands to his Normans and others but chang'd also their manner of conveyance the form of their Charters and the course of making Knights whereupon all the rules of Knight-service have since depended See his words p. 901. For at that time Miles per militiam tenens were all one by Glanvils testimony Lib. 7. ca. 3. p. 49. But when all fails I hope they will believe the Conqueror himself who in a Charter of his Laws and a great Council of the Kingdom which we now call a Parliament publish'd by Mr. Lambard useth these words Statuimus sirmiter praecipimus ut omnes Comites Barones Milites servientes universi liberi homines totius Regni nostri praedicti habeant teneant se semper bene in armis in Equis ut decet oportet Et quod sint semper prompti parati ad servitium suum integrum nobis explendum peragendum cum semper opus adfuerit secundum quod nobis debent de feodis Tenementis suis de jure facere sicut illis statuimus per commune consilium totius regni nostri praedicti illis dedimus concessimus in feodis jure haereditatio Hoc praeceptum non sit violatum ullo modo super forisfacturam plenam Here the word statuimus c. sheweth that it was the Conqueror's institution and concessimus in feodis jure haereditario implyeth that Feuds were not hereditary before this grant But there may lye the same objection against it which my self made against the like in Edw. the Confessor's Laws that it is in a differing letter from the rest of the Text and not found in the Copy left unto us by Roger Hoveden I acknowledge it but I see that here every thing agreeth with the Manners Laws Time and Idiom of the Conqueror And I conceive that it is fallen out as it did of old in the Councils of Nice and Sardis and many other too several Councils to be joyn'd together For Hoveden mentioneth his Copy to be Decretum in civitate Claudia that is Gloster but Lambard his to be in civitate Londra London so that they seem two several Constitutions made at several times and places and here put together into one Howsoever it be 't is very observable for it discovereth that which elsewhere we meet not with so perspicuously related That the great dignities of Earls and Barons or Ministerial Thanes which before were arbitrable or but for life and those also of the lesser sort which enjoy'd the Knights Fees no otherwise than in the same manner were either now erected with us or made hereditary according to the testimony of the Feodal Law before recited 'Till now therefore there could no Wardship Marriage Releif or other Feodal servitudes thereupon depending be amongst us nor could the word feodum be taken for haereditas the one being formerly contrary to the other For Cujacius and the Feudists Feud Lib. 2. Tit. 17. p. 166. make proprietas alodium haereditas to be all one in Feodal sense and feodum to be contrary to them all as res alienae proprietatis servituti obnoxia successionis coercitae and being until this time not hereditary but arbitrable The course being thus chang'd by the Conqueror was presently pursued here in England according to the Norman manner as appeareth in Doomsday where it is said Habet in eodem Feudo de W. Comite Radulpho de Limes 50 carucat terrae sicut fit in Normannia He joyneth Normannia with Feudum as to shew us whence it came and where we should see the pattern of it The old Saxon manner of dividing the Kingdom by Hydes and levying Souldiers according to the Hydes grew now out of use and instead thereof the Kings wars to be supplied by Knights Fees the number whereof shortly after were accompted as Sprott the Monk of Canterbury relateth to 60215. and of them he saith 28115. were in the Clergies hand The Normans also chang'd the name of an Hyde of Land and call'd it Carruè a Plough land and as it seemeth in erecting and laying forth their Knight's Fees assign'd ordinarily two Carrues or Plough land to a Knights Fee For 't is noted out of the Black Register of St. Edmunds-Bury that Will. the Conqueror gave to Baldwin then Abbot there octoginta carucatas terrae unde feodaret quadraginta Milites And according to the rate of so much land in those times is a Knights Fee at this day valued in the Law books but at five pounds CHAP. XXVIII The Conclusion I Will wander no further in this argument I suppose I may be bold out of that which is already said to conclude that I was not mistaken in referring the original of our Feuds in England to the Norman Conquest and that my conjecture doth not cross the force of any Law But now I come to an end I must discover a great mistaking committed by him that drew the Breviate for the Reverend Judges for he hath made us all on both sides like Pan in Ovid to towse a Reed-sheaf instead of Syrinx or like Ixion to embrace a Cloud instead of Juno to labour much about a surmis'd assertion of his own instead of that which I deliver'd The truth is I have no where refer'd the original of Feuds in England to the Norman Conquest Nay when I spake of them I said habentur plurima quae apprime huc conducunt in Anglo Saxonum nostrorum legibus and this I still affirm but my words which he hath much perverted are these Feodorum servitutes in Britanniam nostram primus invexit Gulielmus senior It was neither my words nor my meaning to say that he first brought in either Feuds or Military service in a general sense but that he brought in the Servitudes and Grievances of Feuds viz. Wardship Marriage and such like which to this day were never known to other Nations that are govern'd by the Feodal Law There is great difference
pag. 89. concerning this Treatise I shall here briefly exhibit some particulars which I acknowledge to have gather'd from an ample and most judicious discourse on this Subject written by the Learned Sir Henry Spelman Knight in 1614. very well worthy to be made publick THE Occasion of this Discourse ABout fourty two years since divers Gentlemen in London studious of Antiquities fram'd themselves into a College or Society of Antiquaries appointing to meet every Friday weekly in the Term at a place agreed of and for Learning sake to confer upon some questions in that Faculty and to sup together The place after a meeting or two became certain at Darby-house where the Herald's-Office is kept and two Questions were propounded at every meeting to be handled at the next that followed so that every man had a sennight's respite to advise upon them and then to deliver his opinion That which seem'd most material was by one of the company chosen for the purpose to be enter'd in a book that so it might remain unto posterity The Society increased daily many persons of great worth as well noble as other learned joyning themselves unto it Thus it continu'd divers years but as all good uses commonly decline so many of the chief Supporters hereof either dying or withdrawing themselves from London into the Country this among the rest grew for twenty years to be discontinu'd But it then came again into the mind of divers principal Gentlemen to revive it and for that purpose upon the day of in the year 1614. there met at the same place Sir James Ley Knight then Attorney of the Court of Wards since Earl of Marleborough and Lord Treasurer of England Sir Robert Cotton Knight and Baronett Sir John Davies his Majestie 's Attorney for Ireland Sir Richard St. George Knt. then Norrey Mr. Hackwell the Queen's Solicitor Mr. Camden then Clarentieux my self and some others Of these the Lord Treasurer Sir Robert Cotton Mr. Camden and my self had been of the original Foundation and to my knowledge were all then living of that sort saving Sir John Doderidge Knight Justice of the King 's Bench. We held it sufficient for that time to revive the meeting and only conceiv'd some rules of Government and limitation to be observ'd amongst us whereof this was one That for avoid offence we should neither meddle with matters of State nor of Religion And agreeing of two Questions for the next meeting we chose Mr. Hackwell to be our Register and the Convocator of our Assemblies for the present and supping together so departed One of the Questions was touching the Original of the Terms about which as being obscure and generally mistaken I bestow'd some extraordinary pains that coming short of others in understanding I might equal them if I could in diligence But before our next meeting we had notice that his Majesty took a little mislike of our Society not being enform'd that we had resolv'd to decline all matters of State Yet hereupon we forbare to meet again and so all our labours lost But mine lying by me and having been often desir'd of me by some of my Friends I thought good upon a review and augmentation to let it creep abroad in the form you see it wishing it might be rectify'd by some better judgement SECT I. Of the Terms in general AS our Law books have nothing to my knowledge touching the original of the Terms so were it much better if our Chronicles had as little For tho' it be little they have in that kind yet is that little very untrue affirming that William the Conquerour did first institute them It is not worth the examining who was Author of the errour but it seemeth Polydore Virgil an Alien in our Common-wealth and not well endenized in our Antiquities spread it first in Print I purpose not to take it upon any man's word but searching for the fountain will if I can deduce them from thence beginning with their definition The Terms be certain portions of the year in which only the King's Justices hold plea in the high Temporal Courts of causes belonging to their Jurisdiction in the places thereto assigned according to the ancient Rites and Customs of the Kingdom The definition divides it self and offers these parts to be consider'd 1. The Names they bear 2. The Original they come from 3. The Time they continue 4. The Persons they are held by 5. The Causes they deal with 6. The Place they are kept in 7. The Rites they are performed with The parts minister matter for a Book at large but my purpose upon the occasion impos'd being to deal only with the Institution of the Terms I will travel no farther than the three first stages of my division that is touching their Name their Original and their Time of continuance SECT II. Of the Names of the Terms THe word Terminus is of the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifieth the Bound End or Limit of a thing here particularly of the time for Law matters In the Civil Law it also signifieth a day set to the Defendant and in that sense doth Bracton Glanvil and others sometimes use it Mat. Paris calleth the Sheriff's Turn Terminum Vicecomitis and in the addition to the MSS. Laws of King Inas Terminus is applied to the Hundred-Court as also in a Charter of Hen. I. prescribing the time of holding the Court. And we ordinarily use it for any set portion of Time as of Life Years Lease c. The space between the Terms is named Vacation à Vacando as being leasure from Law business by Latinists Justitium à jure stando because the Law is now at a stop or stand The Civilians and Canonists call Term-time Dies Juridicos Law-days the Vacation Dies Feriales days of leasure or intermission Festival-days as being indeed sequester'd from troublesome affairs of humane business and devoted properly to the service of God and his Church According to this our Saxon and Norman Ancestors divided the year also between God and the King calling those days and parts that were assigned to God Dies pacis Ecclesiae the residue alloted to the King Dies or tempus pacis Regis Divisum Imperium cum Jove Caesar habet Other names I find none anciently among us nor the word Terminus to be frequent till the age of Henry II. wherein Gervasius Tilburiensis and Ranulphus de Glanvilla if those books be theirs do continually use it for Dies pacis Regis The ancient Romans in like manner divided their year between their Gods and their Common-wealth naming their Law-days or Term-time Fastos because their Praetor or Judge might then Fari that is speak freely their Vacation or days of Intermission as appointed to the service of their Gods they called Nefastos for that the Praetor might ne fari not speak in them judicially Ovid Fastorum lib. 1. thus expresseth it Ille Nefastus erat per quem tria verba silentur Fastus erat per
honorem nostrum ac jurium dicti regni nostri commodum diligitis nullo modo omittatis Teste Rege apud Turrim London XII die Junii Per ipsum Regem ¶ Vide plus de Returnis Ll. H. II. cap. 59. CHAP. VIII Why I have used so much Canon and Foreign Law in this discourse with an excursion into the Original of our Law I Have used much Canon and some other Foreign Law in this discourse yet I take it not impertinently for as these Western Nations are for the most part deduced from the Germans so in ancient times there was a great 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and affinity in their Laws Facies non omnibus una Nec diversa tamen qualem decet esse sororum They that look into the Laws of our English Saxons of the Saliques French Almayns Ripuarians Bavarians Longobards and other German Nations about 800. years since shall easily find it Out of them and other Manners Rites and Customs of the Saxons and Germans is the first part and foundation of our Laws commonly called the Laws of Edward the Confessour and Common Law Two other principal parts as from two Pole-Stars take their direction from the Canon Law and the Law of our brethren the Longobards descending of Saxon lineage as well as we called otherwise the Feodal-law received generally through all Europe For in matters concerning the Church and Church-men Advousons Patronage Presentations Legitimation Matrimony Wills Testaments Adultery Defamation Oaths Perjury Days of Law Days of Vacation wager of Law and many other things it proceeded sometimes wholly sometimes for the greater part by the rules and precepts of the Canon Law And in matters touching Inheritance Fees Tenures by Knights-service Rents Services Wards Marriage of Wards Reliefs Treason Pleas of the Crown Escheats dower of the third part aids fines Felony Forfeiture Tryal by battel Essoine Warrantie c. from the Feodal Law chiefly as those that read the books of those Laws collected by Obertus and Gerardus may see apparently Tho' we and divers other Nations according as befitteth every one in their particular respects do in many things vary from them which Obertus confesseth to be requisite and to happen often among the Longobards themselves I do marvel many times that my Lord Cooke adorning our Law with so many flowers of Antiquity and foreign Learning hath not as I suppose turned aside into this field from whence so many roots of our Law have of old been taken and transplanted I wish some worthy Lawyer would read them diligently and shew the several heads from whence these of ours are taken They beyond the Seas are not only diligent but very curious in this kind but we are all for profit and Lucrando pane taking what we find at Market without enquiring whence it came Another great portion of our Common Law is derived from the Civil Law unless we will say that the Civil Law is derived from ours Dr. Cowel who hath learnedly travelled in comparing and parallelling of them affirmeth that no Law of any Christian Nation whatsoever approacheth nearer to the Civil Law than this of ours His meaning is no Municipal Law Yet he saith that all of them generali hujus disciplinae aequitate temperantur quasi condiuntur Had he not said it his book it self intituled Institutiones Juris Anglicani ad methodum seriem Institutionum Imperialium compositae digestae would demonstrate it which Bracton also above 300. years before right well understanding not only citeth the Digests and Books of Civil Law in many places for warrant of our Common Law but in handling our Law pursueth the method phrase and matter of Justinian's Institutes of Civil Law When and how these several parts were brought into our Common Law is neither easily nor definitively to be expressed Those no doubt of Canon Law by the prevalency of the Clergy in their several Ages those of the Feodal by military Princes at and shortly after the Conquest And those of Civil Law by such of our Reverend Judges and Sages of ancient time as for Justice and knowledge sake sought instruction thence when they found no rule at home to guide their judgements by For I suppose they in those days judged many things ex aequo bono and that their judgements after as Responsa Prudentium among the Romans and the Codex Theodosianus became precedents of Law unto posterity As for the parts given unto Common Law out of the Constitutions of our Kings since the Conquest and before Magna Charta I refer them as they properly belong to our Statute Law tho' our Lawyers do reckon them ordinarily for common Law Among these various heads of our Law I deduce none from the Scots yet must I confess that if those Laws of theirs which they ascribe to Malcolm the Second who lived about sixty years before the Conquest be of that antiquity which I cannot but question and that our book called Glanvil be wholly in effect and verbatim for the greatest part taken out of the book of their Law called Regiam Majestatem for they pretend that to be elder than our Glanvil I must I say ingenuously confess that the greatest part or portion of our Law is come from Scotland which none I think versed either in story or antiquities will or can admit To come therefore to the point if my opinion be any thing I think the foundation of our Law to be laid by our German Ancestours but built upon and polished by materials taken from the Canon Law and Civil Law And under the capacious name of Germans I not only intend our Saxons but the ancient French and Saliques not excluding from that fraternity the Cimbrian Nations i. e. the Norwegians Danes and Normans And let it not more mislike us to take our Laws from the noble Germans a prime and most potent people than it did the conquering Romans theirs from Greece or the learned Grecians theirs from the Hebrews It is not credible that the Britains should be the Authors of them or that their Laws after so many transmutations of people and government but especially after the expulsion in a manner of their Nation or at least of their Nobility Gentry and Free-men the abolishing of their Language and the cessation of all commerce with them and an hereditary hostility settl'd between these Nations that after all this I say they should remain or be taken up by the conquering enemy who scarcely suffered one Town in a County to be called as they named it or one British word almost that I yet have learned to creep into their Language Admit that much of their servile and base people remained behind them pleased perhaps as well with their new Lords as with their old can we think that the Saxons should take either Laws or Manners or form of Government from these base and servile people I would not blemish the least feather of the British honour but I must follow the truth
homicidium casu commissions culpa non praecedente non est imputandum And Sibi imputari non debet quia fortuitos casus qui praevideri non possunt non praevidit And De casu fortuito nullus tenetur cum praevideri non possit And upon this the stream of the Canonists do run as by a multitude of Books may be shew'd with whom our Bracton a great Civilian and Common Lawyer too Homicidium casuale non imputatur 5. The two heads whereto the Law looketh freeing a man from blame and expresly from Irregularity are that the person by whom the Action is perform d do not dare operam rei illicitae and that he use diligence of his part that no hurt be committed Azorius the Jesuite saith Irregularitas cum ob delictum constituitur non nisi ex lethali peccato contrahitur nisi ex homicidio fiat quis irregularis eo quod det operam rei vetitae interdictae nam tunc quamvis homicidium casu sequatur ob culpam nostram levem vel levissimam multorum est opinio irregularitatem contrahi And Ivo in his Canons some hundreds of years before him Si duo fratres in sylva arbores succiderint appropinquante casura unius arboris frater fratri dixerit Cave ille fugiens in pressuram arboris inciderit ac mortuus fuerit vivens frater innocens de sanguine germani dijudicatur Now the caâ—e at Bramsil is within the compass of these two conditions For the party agent was about no unlawful work for what he did was in the day in the presence of fourty or fifty persons the Lord Zouch who was owner of the Park not only standing by but inviting to Hunt and Shoot and all persons in the Field were call'd upon to stand far off partly for avoiding harm and partly lest they should disturb the Game and all in the Field perform'd what was desir'd And this course did the Lord Arch-bishop use to take when or wheresoever he did shoot as all persons at any time present can witness never any man being more solicitous thereof than he evermore was And the morning when the deed was done the Keeper was twice warn'd to stay behind and not to run forward but he carelesly did otherwise when he that shot could take no notice of his galloping in before the Bow as may be seen by the Verdict of the Coroner's Inquest 6. This case at Bramsill is so favourable that the strictest Writers of these times directly conclude that if a Clergy-man committing casuale homicidium be about a forbidden and interdicted act yet he is not irregular if the interdicted act be not therefore forbidden because it may draw on Homicide And thereupon inasmuch as Hunting is forbidden in a Clergy-man not in respect of danger of Life but for Decency that he should not spend his time in Exercises which may hinder him from the study fit for his Calling or for other such reasons Irregularity followeth not thereupon And to this purpose writeth at large Soto Covarruvias and Suarez who are great Canonists and Schoolmen And if this be true as out of great reason it may be so held how much further is the present case in question from Irregularitie 7. But some go directly to the point and say that the Lord Arch-bishop did navare operam rei illicitae because he was on Hunting for that was interdicted to a Bishop by the Canon De Clerico Venatore and so by a consequent he must needs be Irregular To which objection see how many clear and true answers there be As first that the Canon being taken out of the Decrees is by Gratian himself branded to be Palea no better than Chaff Secondly it is cited out of the fourth Council of Orleans and there is no such thing to be found as the Gloss well observeth Thirdly it forbiddeth Hunting cum canibus aut accipitribus and none of these were at Bramsil And if you will enforce it by comparison or proportion the rule of the Law is Favores sunt ampliandi odia restringenda Where mark when Hunting with Dogs or Hawks is forbidden it is not for fear of Slaughter for there is no such danger in either of them Fourthly the Canon forbiddeth Hunting voluptatis causa but not recreationis or valetudinis gratia which the Books say is permitted etiam Episcopo Fifthly the Canon hath Si saepius detentus fuerit if he make a Life or Occupation of it which the world knoweth is not the Arch-bishop's case but a little one time in the year directed so by his Physician to avoid two diseases whereunto he is subject the Stone and the Gout Sixthly it is clamosa venatio against which the Canon speaketh not quieta or modesta which the Canonists allow and this whereof the question ariseth was most silent and quiet saving that this accident by the Keeper's unadvised running in hath afterwards made a noise over all the Countrey 8. These Exceptions as they naturally and without any enforcing give answer to this Objection of the Canon so there is another thing that may stop the mouth of all Gain-sayers if any Reason will content them And that is that by the Stat. of Henr. VIII 35. ca. 16. no Canon is in force in England which was not in use before that time or is not contrary or derogatory to the Laws or Statutes of this Realm nor to the Prerogatives of the Royal Crown of which nature this is For in Charta de Foresta Archbishops and Bishops by name have liberty to Hunt and 13. Ric. II. cap. 13. a Clergy-man who hath 10l. by the year may keep grey-hounds to hunt And Linwood who liv'd soon after that time and understood the Ecclesiastical Constitutions and the Laws of England very well in treating of Hunting speaketh against Clergy-men using that exercise unlawfully as in places restrain'd or forbidden but hath not one word against Hunting simply And the Arch-bishop of Canterbury had formerly more than twenty Parks and Chaces of his own to use at his pleasure and now by Charter hath free-warren in all his lands And by ancient Record the Bishop of Rochester at his death was to render to the Arch-bishop of Canterbury his Kennel of Hounds as a mortuary whereof as I am credibly inform'd the Law taketh notice for the King Sede vacante under the name of Muta canum and Mulctura To this may be added the perpetuated use of Hunting by Bishops in their Parks continu'd to this day without scruple or question As that most Reverend man the Lord Arch-bishop Whitgyfte us'd in Hartlebury-park while he liv'd at Worcester in Ford-park in Kent in the Park of the Lord Cobham near Canterbury where by the favour of that Lord he kill'd twenty Bucks in one journey using Hounds Grey-hounds or his Bow at his pleasure although he never Shot well And the same is credibly reported of the Lord Arch-bishop Sandes And it is most true that the