to all these was the Tenant by Knights-service ty'd by his oath of Fealty swearing to be feal and leal As the oath was at those times interpreted as well by Divines and Canonists as by Feodists and Lawyers And as these were inherent to this Tenure of Common right so was there many other grievous exactions impos'd by the Lords upon their Tenants some by custom of the Mannour some by Composition upon granting the Fee and many by Signioral Authority as tho' the Lord besides his Legal Power might do some things like the King by Prerogative By Custom when the Lord or Lady came into the Mannour the Bailiff was to present them 18 oras denar and every of their servants 10s. with some summs of mony as gratuities ut essent laeti animo That the Tenants should pay 32d. for every daughter they married It was an ordinary custom that Lords might take not only of their Tenants but of all the Country thereabout Victuals and all other necessaries for furnishing their Castles which how grievous it was may well enough be conceiv'd tho' the Statute that restrain'd it did not testifie it So other Lords took provision for their houshold and hospitality within their Mannours By Composition as to have their Tenants attend them with horse and man in their journies whom they call'd Road-knights To present them yearly at times Horses Hawks and other things of profit and pleasure By Signioral Authority as to lye and feast themselves and followers call'd Coshering at their Tenants houses and when any matter of extraordinary charge fell upon them then to extort the same amongst their Tenants which the Irish about fourty years since of my own knowledge still continu'd calling it Cuttings according to our old word Tallagium But among us it was taken away by the Magna Charta of King John I speak not of the innumerable Carriages Angaries and Vexations with which they otherwise harrowed if not plagued their Tenants Yet must I not let that pass which every where was then in use for Lords of Castles to imprison men at pleasure to hold and keep distresses there against common justice and to do many outrages all about them Wherein the Lords of Mannours imitating them would also imprison their Tenants and followers which Custom I saw also yet not laid down in Ireland fourty years since For a Meane-Lord would ordinarily say upon offence taken against a Churle c. Take him and put him in bolts But let Matthew Paris who liv'd long after many of these oppressions were abolish'd tell you the fashions of those times Every Lord having this authority over his Tenant the Superiour as comprehending them all and holding in Capite was tyed to the King to see all under his tenure to be of good Government good behaviour and forth-coming whensoever they should be demanded to answer any misdemeanour This appeareth by the Laws of Edward the Confessor where it is said Archiepiscopi Episcopi Comites Barones omnes qui habuerint Sacam Socam c. milites proprios servientes sc dapiferos pincernas c. sub suo friburgo habeant That is sub sua fide-jussione de se bene gerendo By reason whereof whatsoever those their Lords agreed or disagreed unto in matters of the State and Common-wealth it did bind every of them their inferiors Unto whom they themselves might then also appoint Laws and Ordinances in their own Courts And this is that which Tacitus affirmeth to have been the ancient manner of the Germans our Ancestors Agricolis suis jus dicere where under the word Agricolis he intendeth all them whom we call Tenants Hence then it comes to pass that in making Laws of the Kingdom the common people were not consulted with but only the Barons and those which held in Capite who then were call'd Consilium Regni And the common people being as I said by way of tenure under one or other of them did then by him that was their chief Lord as by their Tribune or Procurator and as now by the Knights of the Shire consent or dissent in Law-making and are not therefore nam'd in the title of any ancient Law Look doomsday-Doomsday-book and there ye shall see the whole Kingdom divided only among the Barons and great Persons and the whole Commons of the Kingdom distributed and plac'd under some of them tho' not by name yet by number in their several qualities Let us then see how the practice of those ancient ages agreed with this Theoreme King Ina made his Laws by the advice of Kenred his father and as he saith himself Heddis Erkenwaldi Episcoporum meorum omnium Aldermannorum i. e. Procerum meorum seniorum sapientum Regni mei multa aggregatione servorum Dei which is of Church-men as I take it Alured briefly Consilio sapientum meorum Edward the Elder proposeth his Laws not as Senatus-consultum but as Edictum Principis viz. Ego Edouardus Rex iis omnibus qui Reipub. praesunt etiam atque etiam mando ut c. And after by the absolute words Praecipio Statuimus Volo Yet those wherein he and Guthrun the Dane joyned are call'd Senatus-consulta Ethelstane made his Ex prudenti Vlfhelmae Archiepiscopi aliorumque Episcoporum suorum consilio nec-non omnium Optimatum sapientum mandato suo congregatorum Edmund in a great Assembly Tam Ecclesiasticorum quà m Laicorum cui interfuerunt Oda Wulstanus Archiep. plurimique alii Episcopi Edgar In frequenti sapientum Senatu Ethelred In sapientum Concilio Canuius saith Sapientum adhibito Consilio per omnem Angliam observari praecipio As for Edward the Confessor his Laws come not to us as they were composed by himself but as the Paragraphs of them were collected by the Conqueror and augmented afterward In which collection there is no mention made of the manner of their Institution But reciting of a passage of St. Austens touching Tithes it is spoken as of former time that Haec concessa sunt à Rege Baronibus populo meaning the several kinds of Tithes there mention'd But whether these words extend to a concession of them by Parlament as we now call it or by a voluntary contribution of them yeilded unto by the King the Barons and the people according to the Canons of the Church I leave to others to determine To come to times of the Conquerour wherein Novus seclorum nascitur ordo and from whence as from a new period we must now take all our projections The great establishment of his own and of Edward the Confessor's Laws is said in the title to be that which Gulielmus Rex Anglorum cum Principibus suis constituit post conquisitionem Angliae Other Authors instead of Principibus have Barones And tho' all his Laws for the most part were ordain'd by his Charter in his own name only yet they seem to be made by the
Dom. 1627. With the Imprimatur of Sir John Bramston July 6. 1640. Many Instruments in this Collection are printed in the Second Volume of his Councils and it might be much improv'd from some Historians that have been publisht since his time In the Year 1641. there came out a Discourse de Sepultura by Sir Henry Spelman concerning the Fees for Burials 'T is likely that it was compos'd on occasion of his being one of the Commissioners for regulating the Fees in our Civil and Ecclesiastical Courts The Treatise consists of five sheets in 4 to so that I wonder why J. A. in his Preface to the Glossary should tell us that is was no more than two leaves His Latin Treatise entitled Aspilogia was next publish'd with Notes by Sir Edw. Bish Anno 1654. in Folio In this tho' it was one of his first Pieces he discourses with great variety of Learning concerning the Original and different kinds of those Marks of Honour since call'd Arms. He also drew up a scheme of the Abbreviations and such other obsolete forms of writing as occur in our old Manuscripts to facilitate the reading of ancient Books and Records There are several Copies of it in Manuscript as one in the Bodleian Library another in the Library of the late Dr. Plot a third in the possession of Mr. Worsley of Lincolns-Inn and 't is probable there may be more of em abroad in other hands Two other things he was concern'd in which I shall but just mention The Villare Anglicum or a view of the Towns in England publisht in the Year 1656. was collected By the appointment at the charge and for the use of that worthy Antiquary Sir Henry Spelman And Mr. Speed in his Description of Great Britain acknowledges that he receiv'd the account of Norfolk from the same Learned Knight As for his Posthumous Works which are publisht together on this occasion I shall give a more particular account of 'em in the Preface and in this place shall only add an instance or two of his Encouragement to Learning and Learned Men. It was he who first advis'd Dr. Wats to the study of Antiquities and when he had arriv'd to a good skill in those matters put him upon a new Edition of Matthew Paris The Doctor in the Preface to that excellent Work makes this grateful mention of his Friend and Patron Tertium Manuscriptum accommodavit Nobilis ille Doctissimusque Dominus Henricus Spelmannus Eques Auratus Eruditionis reconditioris Judicii acerrimi Vir nostrae Britanniae Lumen Gloriaque Amicus insupermeus singularis in studiis adjutor praecipuus qui me primus ad Antiquitates eruendas tam verbo quam exemplo aliquoties stimulavit erudivitque He was likewise a great Favourer of Sir William Dugdale who had been recommended to him by Sir Simon Archer a Gentleman of Warwickshire very well versed in Heraldry and the affairs of our own Nation At that time Mr. Dodsworth who was much assisted and encouraged by Sir Henry Spelman had got together a vast collection of Records relating to the Foundation of Monasteries in the Northern parts of England Sir Henry thought that these might be very well improv'd into a Monasticon Anglicanum and lest the design should miscarry by Mr. Dodsworth's death he prevail'd upon Mr. Dugdale to join him in so commendable a Work promising to communicate all his Transcripts of Foundation Charters belonging to several Monasteries in Norfolk and Suffolk For his further encouragement he recommended him to Thomas Earl of Arundel then Earl Marshal of England as a person very well qualify'd to serve the King in the Office of Arms. Accordingly upon his character of him seconded by the importunity of Sir Christopher Hatton he was settl'd in the Heralds-office which gave him an opportunity to fix in London and from the many assistances there to compile the laborious Volumes which he afterwards publisht His revival of the old Saxon Tongue ought to be reckon'd a good piece of service to the study of Antiquities He had found the excellent use of that Language in the whole course of his Studies and very much lamented the neglect of it both at home and abroad which was so general that he did not then know one Man in the world who perfectly knew it Paulatim says he ita exhalavit animam nobile illud Majorum nostrorum pervetustum idioma ut in universo quod sciam orbe ne unus hodie reperiatur qui hoc scite perfecteve calleat pauci quidem qui vel exoletas literas usquequaque noverint Hereupon he settl'd a Saxon Lecture in the University of Cambridge allowing 20l. per An. to Mr. Abraham Wheelock who tells us that upon his advice and encouragement he spent the best part of seven years in the study of that Language Magnam septennii quod effluxit partem consumpsi Saxonum nostrorum inquirendo Monumenta eorumque vetus idioma Veritatis pacis Catholicae magistram perquirendo ne nobilissimi Viri in his studiis monitoris mei honoratissimi 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 D. Henrici Spelmanni Antiquitatum nostrae gentis instauratoris eximii consilio defuissem This stipend was intended to be made perpetual but both He and his eldest Son dying in the compass of two years the Civil Wars breaking forth and the Estate being sequester'd the Family became uncapable of accomplishing that Design Nor indeed was that a Time for settlements of this kind when such a terrible storm threatn'd the Universities and the Revenues that belong'd to ' em After he came into business he was intimately acquainted with the most considerable Persons of that Age. He calls Mr. Camden his ancient Friend and how entire a Familiarity there was between him and Arch-bishop Usher we are inform'd from the Life and Letters of that Learned Primate To these I might add Sir Rob. Cotton Mr. Selden Olaus Wormius with Peireschius Meursius Beignonius and others of great note both at home and abroad whom he himself occasionally mentions as the chief Encouragers of his Glossary Upon the whole matter as his Loyalty Wisdom and Experience in publick Affairs would sufficiently recommend him to the great States-men of his time so his eminent Piety and Learning must needs make him highly esteem'd among Divines and Scholars He had eight Children four Sons and four Daughters His eldest Son the heir of his Studies as he calls him was John Spelman Esq a Scholar and a Gentleman who had great assurances of favour and encouragement from King Charles I. This good Prince sent for Sir Henry Spelman and offer'd him the Mastership of Suttons Hospital with some other things in consideration of his good services both to Church and State But after his humble thanks to his Majesty he told him that he was very old and had one foot in the grave and that it would be a much greater obligation upon him if his
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
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
son Clement Spelman containing many things relating to Impropriations and several instances of the judgements of God upon Sacriledge The greatest part of these instances seems to be taken from his History and Fate of Sacriledge a book still in Manuscript The Gentleman for whose sake it was written dy'd immediately upon the publication of this book but however it did very good service to the Church This Mr. Stephens has made appear in a Preface to some of his Posthumous Works wherein he instances in several Gentlemen who were induc'd by the reading of this book to restore their Impropriations to the Church That part of the Preface is since reprinted before an Edition of this book which came out in the Year 1668. and therefore I shall not repeat the Catalogue of them in this place I will only beg leave to mention a more modern benefaction of this kind as it is set down in the late Edition of Camden's Britannia Scarce two miles from Arksey in the West-riding of York-shire lies Adwick in the street memorable on this account that Mrs. Ann Savill a Virgin benefactor yet living daughter of John Savill of Medly Esq purchased the Rectory thereof for which she gave about 900l. and has settl'd it in the hands of Trustees for the use of the Church for ever and this from a generous and pious principle upon the reading of Sir Henry Spelman's noted Treatise De non temerandis Ecclesiis Some reflections were made upon this Discourse by an unknown Author who could not forgive Sir Henry for paying so much respect to Churches and particularly for applying the word Ecclesia to a material Church urging that this term belongs only to the Assembly or Congregation This Sir Henry takes notice of in his Glossary under the title Ecclesia producing some instances of the use of that word in ancient Authors and afterwards honoured it with a fuller Apology It is publisht by Mr. Stephens at the end of his Larger work of Tithes so call'd with respect to the Smaller Treatise De non temerandis Ecclesiis together with a pious Epistle to Mr. Richard Carew who in a Letter to the Author had express'd his dissatisfaction in some particulars of this Work His next book upon this subject is that which he calls the Larger work of Tithes publisht by Mr. Jerem. Stephens in the Year 1646. with an excellent Preface by the same hand In this Discourse he asserts Tithes to the Clergy from the Laws of Nature and of Nations from the Commands of God in the Old and New Testament and from the particular Constitution of our own Kingdom Another work in vindication of the Rights of the Church is still in Manuscript with this title The History and Fate of Sacriledge discover'd by examples of Scripture of Heathens and of Christians from the beginning of the world continually to this day by Sir Henry Spelman Kt. Anno Domini 1632. The account which the Oxford Antiquary gives us of it is this In the Year 1663. Mr. Stephens began to print the History of Sacriledge design'd and began by Sir Henry Spelman and left to Mr. Stephens to perfect and publish But that work sticking long in the Press both the Copy and sheets printed off perisht in the grand Conflagration of London 1666. I have been told by a Learned Divine since a Prelate of our Church that Mr. Stephens was forbidden to proceed in an Edition of that Work lest the publication of it should give offence to the Nobility and Gentry But whatever was the occasion of its continuing in the Press till the Fire of London it has been taken for granted that the whole book was irrecoverably lost and I was satisfied of the same upon Mr. Wood's relation of the matter till examining some Manuscripts which were given to the Bodleian Library by the late Bishop of Lincoln I met with a transcript of some part of it Upon further enquiry I found other parts in other places so that now the Work seems to be pretty entire He begins with a general definition of Sacriledge then reckons up various kinds of it as to Places Persons and Things after which he enumerates at large the many signal punishments of it among Heathens Jews and Christians describing more particularly the instances of that kind which have formerly happen'd in our Nation Then he proceeds to give an account of the attempt upon the lands of the Clergy in Henry the IV's time and how it was disappointed afterwards he descends to the suppression of Priories-Alien in the Reign of Henry V. and so on to the general Dissolution under Henry VIII Here he shows us the several steps of the Dissolution the King 's express promise to employ the Lands to the advancement of Learning Religion and Relief of the Poor with the remarkable Calamities that ensu'd upon the King his Posterity his principal Agents in that affair the new Owners of the Lands and the Lords who promoted and passed the Dissolution Act Concluding with a Chapter which contains The particulars of divers Monasteries in Norfolk whereof the late Owners since the Dissolution are extinct or decay'd or overthrown by Misfortunes and grievous Accidents This is a short account of a large Work wherein the judicious Author is far from affirming that their being concern'd in this Affair either as promoters of the Alienation or Possessors of the Lands was directly the occasion of the Calamities that ensu'd On the contrary he declares more than once that he will not presume to judge of the secret methods of God's Providence but only relates plain matters of fact and leaves every man to make his own application Tho' it must be granted that many of the instances and those well asserted are so terrible in the Event and in the Circumstances so surprising that no considering Man can well pass them over without a serious reflection This Discourse might have appear'd among his other Posthumous Works but that some persons in the present Age would be apt to interpret the mention of their Predecessors in such a manner and on such an occasion as an unpardonable reflection upon their Families These I think are all the Treatises that he either wrote or publisht about the Rights of the Church The next Work that I shall mention is a History of the Civil affairs of the Kingdom from the Conquest to Magna Charta taken from our best Historians and generally set down in their own words It is a Manuscript in the Bodleian Library and the title which Sir Henry has given it is this Codex Legum Veterum Statutorum regni Angliae quae ab ingressu Gulielmi usque ad annum nonum Henrici tertii edita sunt Hoc est ante primum Statutum omnium Impressorum in libris juridicis quod Magna Charta appellatur ab Edwardo I. confirmata E variis monimentis Authoribus Manuscriptis antiquis paginis concinnatum Opere Studio Henrici Spelman collecta Anno
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.
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-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.
of a Fine as was common in all cases of Feodal Tenures This hath some shew of our Escuage and might well have taken that name from the manner of summons used in the Empire which was by erecting a post or pillar and hanging a Shield at the top thereof an Herald proclaiming that all who held in this manner should at such a day attend the Emperour in his voyage to Rome for taking the Crown of Italy or King of Romans which the Ligurine Poet thus expresseth Ligno suspenditur alte Erecto Clypeus tunc Praeco regius omnes Convocat a dominis feudalia jura tenentes c. as we have shew'd in our Glossary verbo Feudum He useth Clypeus for a Shield instead of Scutum and from this shield I say it might well be called Scutagium as also from the service performed in it cum hasta scuto Yet this summons was not called Schiltbannum but Heribannum that is indictio exercitus not indictio sâ—uti But to keep nearer the matter First our Saxons neither used the name nor the rules of the Norman Escuage for they called their going to war upon legal summons firdfare and utfare in Latin Expeditionem and Profectionem Secondly they were not tyed to any definite time of abode as for fourty days or more or less but as the law saith sÆ¿a a ðon ðearf sy for gemeneâ—â—â—re neode so as need shall require for common necessity Thirdly the mulct or forfeiture that the Tenant in Escuage incurred for not going forth upon that summons was uncertain among the Normans and us 'till the Parliament assign'd it but among the Saxons he that offended in Ferdwite that is in not going forth in the Expedition was certainly fin'd at 120 Fourthly whereas every Lord among us had the fine assess'd by Parliament of his own Tenant for the Lands holden of himself the King among the Saxons had the fine aforesaid of every delinquent whose Tenant or follower soever he were by all the Laws of the kingdom that is to say by the West-Saxon Law by the Mercian and by the Dane Law tho' otherwise they differ'd in their Heriots and many particular customs So that to talk of Escuage among the Saxons is without all colour or probability as I take it CHAP. XXIII No Feodal Escheate of Hereditary Lands among the Saxons EScheats of Eschoeir in French signifieth things coming accidentally as on the by or by chance The Fâ—odists therefore call them Caduca a cadendo and excadentias the black book of the Exchequer Escaetas excidentia and excadentia but among our Saxons I find no word to express them either properly or paraphrastically In our Law they be of two sorts Regal Escheats and Feodal Regal are those obventions and forfeitures which belong generally to Kings by the ancient right of their Crowns and supreme dignity Thus King David gave the lands of Mephibosheth accused of Treason unto Ziba tho' too hastily Feodal are those which accrue to every Feodal Lord as well as to the King by reason of his Seignory and of all the fruits of Tenure none so great as this if we may call it a fruit where the feud or tree it self resulteth back unto the Lord. Let us see therefore if we find any of these Feodal Escheats among the Saxons There is a shrewd text I confess in Canutus his Laws Qui fugiet à domino suo vel socio pro timiditate in expeditione navali vel terrestri perdat omne quod suum est suam ipsius vitam manus mittat dominus ad terram quam ei dederat si terram haereditariam habeat ipsa in manum Regis transeat Here is the appearance of a Tenure of a Feud of a Forfeiture and of an Escheat The Tenure lyeth between the Lord and his fugitive Vassal whom the Saxons and Germans called his Man we his Tenant The Feud in the Land quam dâ—mâ—nus â—i dederat The forfeiture in fugiendo in the Vassals running away And the Esâ—heat in the Lord 's seizing of the land manus mittat dominus in terram quam ei dederat Let the Lord take back the estate which he gave in the temporary feud But for the hereditary land he saith transeat non redeat in manum Regis All this is nothing in our case for I declared in the beginning that our question was fix'd upon such feuds as the Law of England taketh notice of at this day that is of feuds after they were become hereditary and perpetual not of those mention'd by Gerardus Niger which were temporary as at will of the Lord or for years or for life like them here intended by Canutus This very Law observeth the difference and discovereth also that feuds were not hereditary in his time and therefore giveth the feodal land being but a temporary estate back unto the Lord in whom the Reversion was by inheritance as a feodal right but giveth the hereditary Lands unto the King as a Regal Escheat for that there was no mean or intervenient Lord to claim them by any feodal tenure for that the hereditary lands among the Saxons otherwise called Bocland were holden of no body nor subject to any feodal service as we have often declared and could not therefore Escheat unto any feodal Lord. The Kentish custom of the father to the Bough and the son to the Plough suggesteth as much and sheweth also to have been the general use of England till the Conquerour introducing hereditary feuds put upon us therewith these greater feodal servitudes of Wardship Marriage Escheats c. So that the hereditary lands not being feodal in the Saxon's time nor the feodal lands hereditary there could then be no feodal Escheats among them And I take it to be considerable whether the land resumed by the Lord upon his Vassal's running away be properly an Escheat by the Law of Canutus or rather a penalty only impos'd in this particular case CHAP. XXIV Thaneland and Reveland what no marks of Tenure but distinctions of Land-holders THere is yet another assertion rather shewed than proved That the Thani majores or King's Thanes held by personal service of the King's person by Grand Serjanty or Knights-service in Capite And the reason following is that the land so held was in those times called Thane-land as land holden in Socage was called Reveland so frequently in Doomsday Haec terra fuit terra Regis Edwardi Thainland sed postea conversa est in Reveland Coke's Instit § 117. Thus the Report dischargeth it self upon my Lord Coke whose words be these It is to be observ'd that in the book of Doomsday land holden by Knights-service was called Thainland and land holden by Socage was called Reveland I reverence the opinion of that famous Lawyer with admiration but I suppose he speaketh not this ex tripode juridico For it is impossible that it and that which is before deliver'd out of the
times and that they were not made otherwise than for life or three lives for so I find them in the Abby-books And I also suppose that they to whom these lands were granted were the Thani Episcopi Thani Ecclesiae spoken of in Doomsday-book and that the lands themselves were such as in the same book are usually called Thain-lands Ecclesiae Episcopi and Abbatis But I see they were laden with many services which the lands of the King's Thane in respect of his dignity and person were free from Therefore when this very Bishop by another Charter granted tres cassatas three hydes of land in Cungle cuidam Ministro Regis to one of the King's Thanes nam'd Alfwold and to his Mother if she surviv'd during their lives he put no service upon the King's Thane but saith plena glorietur libertate excepta expeditione rata Pontis arcisve constructione the common exception in grants unto the Kings Thanes as before appeareth and yet the services thereby excepted belonged not either to the Bishop or the King himself otherwise than pro bono publico and common necessity After all this I beat still upon the old string that here yet is nothing to prove Wardship or Marriage or as the law then stood a Tenure by Knights-service for we have made it manifest that Expedition and building of Castles and Bridges were no Feodal services nor grew by Tenure And as for these that were tyed to ride and go up and down with their Lord Baraterius an old Feudist saith that a Knights fee may be given so ut Vassallus in diebus Festivis cum uxore Domini ad Ecclesiam vadat and the feudal law it self inferreth as much Lib. 2. Tit. 3. But our Bracton speaking of our Law here in England de Invest feud in his time touching such Tenants calleth them Rodknights alias Radknights Lib. 2. Cap. 35. nu 6. ut siquis debeat equitare cum Domino suo de Manerio in Manerium and saith not that it is Knight-service but that it is a Serjantie and that although such sometimes do Homage yet the Lord shall not have Ward and Marriage Admit notwithstanding that it were Knight-service and that the lands thus holden were Knights Fees during the life of the Tenant yet where is the Wardship Marriage and Releif Who shall undergo these servitudes since the Tenure and all the services are determin'd with the life of the Tenant CHAP. XXVII Inducements to the Conclusion SEeing then that neither the greater Thanes nor the lesser Thanes among the Saxons were subject to the rules of our Knight-service upon whom then if it were in use among them did it lye For as touching the Clergy it is said in the Laws of Edw. the Confessor cap. 11. that the King and the people magis in Ecclesiae confidebant Orationibus quam in Armorum defensionibus And the Report it self confesseth pag. 3. in pede That the possessions of Bishops and Abbots were first made subject to Knight-service in Capite by William the Conqueror in the fourth year of his reign for their lands were held in the times of the Saxons In pura libera eleemosyna free ab omni servitio seculari c. Though this be not true in the latter part being strictly taken for no doubt their lands were subject to the Trinodi necessitati viz. Expeditioni pontis arcisque constructioni as before appeareth yet cometh it very fitly to my purpose for hereby it is evident that if the Trinodis necessitas made no Tenure by Knight-service or in Capite in the Church Lands then neither did it in the Thane-lands as before we have shew'd and then much less in the land of Churles and Husbandmen commonly call'd the Socmanni for it is agreed on all hands that their lands were holden no otherwise than by Socage Therefore if all Kent in the Saxon's time were Gavelkind then could there be no Tenures by Knight-service in all that County For Glanvil Lib. 7. c. 3. telleth us That where the inheritance is divideable among the sons it is Socage And his reason is because that where 't is holden by Knight-service the Primogenitus succedit in toto This Kentish custom was ab initio the general Law of England and of all Nations Jews Greeks Romans and the rest and so continueth even till this day where the Feodal Law hath not altered it which first happen'd here in England when the Normans introducing their Feuds settled the whole inheritance of them upon the eldest son which the ancient Feodal Law it self did not as we before have noted till Feuds were grown perpetual The reason as I take it that begat this alteration was for that while the Feud did descend in Gavelkind to the Sons and Nephews of the Feodatorie the services were suspended till the Lord had chosen which of the Sons he would have for his Tenant and then it was uncertain whether the party chosen would accept of the Feud or not for sometimes there might be reasons to refuse it To return where I left it makes to the proof of all this that has been said and for conclusion seems to be unanswerable that the old inheritance which in the Saxons time belong'd to the Crown called in Doomsday Terra Regis and in the Law books Antient Demesne containing a great part of every County had not any Lands within it or within any Mannor thereof holden by Knight-service For Fitz-Herbert saith that Nul terres sont antient demesne forsque terres tenus en Socage And therefore if the Tenant in ancient Demesne will claim to hold of the Lord by Knights-service it is good cause to remove the Plea because that no Lands holden of a Mannor which is antient Demesne are holden by other services of the Lord than by Socage for the Tenants in antient Demesne are call'd Socmanni that is to say Tenants del carve Angl. le plough Thus far Fitz-Herbert Now if in the Mannors of the King himself there were then no Lands holden by Knight-service throughout all England it will then in all probability follow that there were none likewise among his Subjects in the Saxons time and consequently that our Feudal Law was not introduc'd before the Conquest Mr. Cambden by their own confession is of the same opinion and Mr. Selden himself whom they alledge against me is clearly with me as before I have shew'd If these our three opinions avail nothing we have yet a fourth to strengthen us great Bracton the most learned in our ancient Laws and Customs that hath been in this Kingdom who speaking of Forinsecum servitium as the Genus to these Tenures saith Lib. 2. cap. 16. Nu. 7. fol. 36. a. that it was call'd regale servitium quia spectat ad Dominum Regem non ad alium secundum quod in Conquestu fuit adinventum Here Bracton also refers the Invention to the Conquest but the Report waveth his opinion as well as ours notwithstanding
being now corruptly so called for Tridings or Thrithings Those things therefore that could not be determined in the Hundred-Courts either for difficulty or miscarriage thereof were from thence brought unto the Trithing where all the principal men of three or more Hundreds being assembled did debate and determine it or if they could not did then send it up nnto the County Court to be there decided as in Parliament by the whole body of the County This appeareth by the Laws of Edward the Confessor Cap. 34. where it is said Erant aliae potestates super Wapentachia quas vocabant ðriðingas c. that is There were other Jurisdictions over Wapentakes or Hundreds which they called Thrithings because they contained a third part of the Province or County And those that governed these Thrithings were thereupon called Thrithingreves before whom were brought all causes that could not be determined in the Wapentakes or Hundreds Tho' I find no such division of our County of Norfolk yet I see the use thereof remained there both till and after the times of the Conquest For William Rufus in a controversie of the Abbot of Ramsie's about the Town of Holme in Norfolk sent his Writ to H. Chamberlyn then Trithingreve as it seemeth over that part of the County commanding him to assemble three Hundreds and an half at a place called Fliâ—ham-burrough which to this day beareth that name and is the site of the Hundred of Frebridge there to determine the said controversie which Writ for reviewing of the ancient customs of the Kingdom I will here adjoin as it standeth in the book of Ramsey Abbey Sect. 197. Willielmus Rex Angl. H. Camerario salutem Fac convenire consedere tres Hundredos dimidium apud Flicceham-Burgh propter terram illam de Holm quae pertinet ad Ringstedam quam Abbas Ramesiae reclamat ad victum vestitum Monachorum suorum Et si Abbas poterit ostendere ratione testimonio Comprovincialium quod antecessor illius eandem terram habuerit eo die quo pater meus fuit vivus mortuus tunc praecipio ut illam terram omnia quae juste pertinent ad Abbathiam suam pacifice honorifice habeat Teste R. Bigod apud Wind. Out of which Writ I conjecture that this H. Camerarius to whom it was directed might be Trithingreve of that part of the County the rather for that the Writ nameth him not Vicecomes as in the next precedent it doth another man viz. Will. Rex O. Vicecomiti salutem c. And that these three Hundreds and an half were to be Judges of the cause it appeareth by the words fac consedere that is cause them to sit down together For Magistrorum Judicum est sedere famulorum Ministrorum stare Therefore it is said Exod. 18. 13. Moses sat to judge the people and the people stood about him whereupon Hugo also noteth Magistrorum est sedere To this purpose also is the Law of H. I. ca. 8. Si aliquis in Hundrâ—… agendorum penuria judicium vel casu aliquo transferendum sit in dâ—us vel tres vel amplius Hundredos respectetur justo fine claudendum Qu. But it seemeth that these Judges were sworn to do right as well as those before mentioned in the Hundred Court And that our course now used for taking a Jury out of many Hundreds in the County for tryal of a cause arising in one Hundred took the beginning from the tryal in the Trithing and that thereupon the Trithing Court grew out of use The Alderman of the County whom confusedly they call an Earl was in parallel equal with the Bishop and therefore both their estimations valued alike in the Laws of Ethelstane at eight thousand Thrymses He was a man learned in the Laws and had the government of the whole Shire and cognizance over all inferiour Courts and persons both in civil matters and criminal For which purpose he held his ordinary Court by the Shreve once every month and there resorted as Suitors and bound by duty all the Lords of Mannours and principal men of the County with the rest of the Free-holders who were not only assistants but Judges with him of all matters there depending whether entred there originally or coming thither by appeal or provocation from the inferiour Courts Ll. Edw. senioris cap. ult Ic Æ¿ille ðat aelc geresa hebbe gemoâ—e c. I will that every Sheriff hold his Court about every four weeks and that he do right equally to every man and make an end of all Suites under the pain before expressed As the Bishop had twice in the year two general Synods wherein all the Clergy of his Diocess of all sorts were ty'd to resort for matters concerning the Church so also was there twice in the year a general assembly of all the Shire for matters concerning the Common-wealth wherein without exception all kind of Estates were required to be present Dukes Earls Barons and so downward of the Laity and especially the Bishop of that Diocess among the Clergy For in those days the Temporal Lords did often sit in Synod with the Bishops and the Bishops in like manner in the Courts of the Temporalty and were therein as by and by shall appear not only necessary but principal Judges themselves Ll. Canuti Regis par 2. ca. 17. The Shyre-gemot for so the Saxons called this assembly of the whole Shire shall be kept twice a year and oftner if need require wherein the Bishop and the Alderman of the Shire shall be present the one to teach the Laws of God the other the Law of the Land This great assembly was by the Laws of Ethelstan ca. 20. to be proclaimed or published a sennight before hand and every man tyed thereupon to be present at it and in the mean time either to satisfie the wrong he had done to another or to undergo the penalty which if he refused all he had was presently to be seâ—sed and himself put to find sureties for his appearance to answer But because this notable assembly otherwise called by the Authors of that time Mallum and Placitum generale was the supreme Court of County-Justice wherein all things of what sort soever were to be determined we will take a little scope in description thereof Shewing first more particularly who were bound to give their attendance here Then what lay in cognizance of this Court And thirdly in what steps they proceeded to the determination of the same All which because they cannot be more authentically delivered then out of the Law it self I will even from thence report it as it standeth in Ll. H. I. ca. 8. Sicut antiqua fuerat institutione formatum c. As it was devised by an ancient institution and confirmed by true report that the general pleas of the Counties ought to be assembled in every Province of England at certain places and before certain Judges at certain times thereto appointed and
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
and the reason why our common Law was 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 an unwritten Law They were originally a Grecian Colonie coming out of Lacedaemon and the Territorie of Sparta Where Lycurgus being sometime King and Author of their Law among other of his Decrees he named 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ordain'd this for one That their Laws should not be written because he would have every man to fix them in his memory and for that purpose made them short and summary after the manner of our maximes This course the Saxons and by their example the other German Nations held for many ages The first of the Northern Nations that alter'd it were the Goths who in the Aera 504. i. e. the year of Christ 466. under Euricus their King set their Laws in writing Legum instituta scriptis habere caeperunt ..... The Burgundians and Saliques a little before but the Saxons themselves and the Angli Werini and Frisii are not noted to have written Law till the time of Herald the Dane about the year 994. So that our Saxons here in Britain began to write some of their Laws before their brethren of Germany For tho' they reduc'd not the general manners and customs of their Country whereby they liv'd and were govern'd into a written Volume but left them still as Lycurgus his Rhetras to common memory and tradition yet many of their ancient Kings after they had recieved Christianity put their own Constitutions into writing So did the most ancient of them Aethelbert King of Kent about the year 680. if his Laws whereof I have a MS. copy were in his own days put in writing So did Inas King of the West-Saxons What the Laws of the Britains were remains at this day to be seen by a model of them in an ancient Manuscript under the Title of The Laws of Hoel Dha that is Hoel the good nothing consonant to these of ours at this day or those of the Saxons in time past But we find by the Red Book in the Exchequer that the Laws of Hen. I. did so concur in many things with them of the other Nations we spake of that sometimes he not only citeth the Salique Law and the Ribuarian or Belgique Law by name but deduceth much of the Text verbatim from them And we find also a great multitude of words of Art names of Offices Officers and Ministers in our Law common in old time to the Germans French Saliques Longobards and other Nations as well as to our Saxons Danes and Normans but not one to my knowledge that riseth from the British tongue nor do we retain any Law Rite or Custom of the ancient Britains which we received not from the Saxons or Germans as used also by them of old before they came into Britain For these few Greek words that are found in our Law Chirographer and Protonotary whereby some argue the antiquity of our Law to be from the Druides whom Caesar and Pliny report to have used the Greek tongue it is doubtless that they are come to us from the Civil Lawyers and the one of them being a Mongrel half Greek and half Latin could not descend from the Druides who had neither knowledge nor use of the Latin tongue They therefore that fetch our Laws from Brutus Mulmutius the Druides or any other Brutish or British Inhabitants here of old affirming that in all the times of these several Nations viz. Britains Romans Saxons Danes and Normans and of their Kings this Realm was still ruled with the self same customes that it is now viz. in the time of King Henry VI. govern'd withal do like them that make the Arcadians to be elder than the Moon and the God Terminus to be so fixed on the Capitoline-hill as neither Mattocks nor Spades nor all the power of men nor of the other Gods could remove him from the place he stood in And thus I end APPENDIX Pat. 11. Hen. III. m. 13. REX universis Patentes literas inspecturis salutem Cum Venerabilis Pater S. Cant. Episcopus auctoritate Domini Papae fratrum suorum nobis gratiam de juramentis praestandis coram Justiciariis nostris de Praecept nostro Itiner ab instanti Adventu Domini usque ad Vigiliam Sancti Thomae Apostoli a principio Quadragesimae usque ad Dominicam qua cantatur Isti sunt dies duntaxat in rebus subscriptis viz. in Assizis ultimae praesentationis de morte Antecessor novae diss de magna Assiza de Inquisitionibus quae de terra emergerint coram eisdem Justiciariis nostris vel per judicium vel de consensu pertinent Ita quod haec concessio hoc anno tantum durabit usque ad diem Dominicam supradictam Nos per literas nostras patentes quas eidem Domino Archiepiscopo fieri fecimus protestati sumus quod concessio illa nobis ad praesens facta usque ad diem Dominicam supradictam non trahetur in consequentiam post eundem diem Cum igitur supplicaverimus Ven. Patri IV. Archiepiscopo Eboracensi de consimili gratia nobis concedenda de Juramentis praestandis per totam Provinciam suam usque ad Terminum praedictum Nos per has literas nostras Patentes protestamur quod dictus Archiepiscopus Ebor. per totam Proviciam suam id de Juramentis praestandis sicut praedictum est nobis duxerit concedendum concessio ista ad praesens facta usque ad terminum praedictum non trahetur in consequentiam post diem eundem In cujus rei testimonium eidem Domino Archiepiscopo Ebor. dedi has literas nostras Patentes sigillo nostro signatas Teste meipso apud Westmonast 11. Nov. Anno regni nostri undecimo Claus 11. H. III. m. 26. Rex dilectis fidelibus suis Stephano de Segrave Roberto de Lexinton sociis suis Justic Itinerantibus in Com. Warw. Leic. Glouc. Wigorn. Salutem Sciatis quod Venerabilis Pater S. Cant. Archiep. auctoritate Domini Papae concessi quod juramenta praestentur coram Justiciariis nostris Itinerant ab instanti adventu corum usque Vigiliam Sancti Thomae Apostoli à principio Quadragesimae usque ad diem Dominicam qua cantatur Isti sunt dies viz. in Ass ultimae praesentationis de morte Antecessor de magna Ass de Inquisitionibus quae emergerint de terris sicut plenius nobis constitit ex inspectione literarum Domini Cant. quas inde vobis mittimus Rogamus ut V. P. W. Ebor. Archiepiscopus quatenus concedens juramenta in consimilibus causis praestari infra Provinciam suam usque ad Praesat Terminum literas suas patentes consimiles literas Domini Cant. inde habere faciat Vt autem liberius facilius hoc volet facere misimus literas nostras patentes quales fieri fecimus Domino Cant. protestantes quod post terminum praefatum concessio praedicta ab eo nobis facta non poterit trahi in observantiam Vobis
Northampton who builded the gallery there but in Queen Mary's time the same was restored to that See where it so continueth 5. The Lord Arch-bishop of YORK'S house was the White-hall much enlarg'd and reedify'd by the Cardinal Wolsey then Arch-bishop of York as by the Arms remaining in wood stone and glass in sundry places of that house may appear And after the said Cardinals conviction of Premunire and Death the same was made parcel of the King's Palace at Westminster by purchase from the Arch-bishop of York as appeareth by the Stat. of 28. Hen. VIII ca. 12. But afterwards until anno 2. or 3. of Queen Mary the Arch-bishop of York had no other dwelling-place near London in right of his See or by reason of his Arch-bishoprick but the house at Battersey and then Queen Mary gave to Arch-bishop Heath and his Successors the late Duke of Suffolk's house called Suffolk-place in Southwark which the Arch-bishop of York by confirmation of the Dean and Chapter there shortly after sold away to others and purchased to his See York-place where the Lord Chancellor remaineth together with the houses adjoining to the Street Which house was sometime the Bishop of Norwich's Place and the same among all or the greatest part of the possessions of the See of Norwich about an 27. Hen. VIII were convey'd to the King by a private Act of Parliament in recompence of the union of the Monastery of St. Bennets and the possessions thereof to that Bishoprick being of far better value than the ancient Lands of the Bishoprick of Norwich assur'd to the King as is recited in the Statute of 32. Hen. VIII ca. 47. whereby the Bishop of Norwich is made Collector of the Tenths of his Diocess as other Bishops were being formerly free'd thereof by the said private Statute of 27. Hen. VIII Which said now York-place by Hen. VIII was convey'd in fee to Charles Brandon Duke of Suffolk and after the death of the said Duke's sons the coheirs of the Duke's sons sold the same to the said Arch-bishop Heath and his Successors 6. But the Bishop of NORWICH was limited by the said private Act of 27. Henry VIII to enjoy perpetually in succession a Prebend in the Free-Chappel of St. Stephens at Westminster after dissolv'd by the Statute of Dissolution of Colledges and Free-Chappels 1. Ed. VI. and the house thereto belonging in Chanon-row whereof then was incumbent one Knight but the house is said to be Leas'd for some small Rent by the Bishop of Norwich to Sir John Thinn Knight in Edw. the Sixth's time for many years enduring And that the house now call'd York-place was belonging to the Bishop of Norwich is proved by a Case 21. Edw. IV. fol. 73. in a Presentment against the Bishop of Norwich in the King's Bench for annoyance of a way inter hospitium Episcopi Norwicensis Dunelmensis in parochia Sancti Martini in Campis 7. DURHAM-HOUSE as appeareth in that Case was the Bishop of Durham's house and Bishop Tonstal about the 26 th of Hen. VIII convey'd the same to the King in Fee and King Henry VIII in recompence thereof granted to the See of Durham Coldharborrowe and certain other houses in London And after Edw. VI. about an 2. granted Durham-house to the Lady Elizabeth his Sister for life or until she be otherwise advanced After the Bishoprick of Durham by a private Statute not printed of 7. Edw. VI. was dissolved and all the possessions thereof given to King Edw. VI. who shortly after convey'd in Fee the said Bishop's late house at Coldharborrowe and other houses in London to Francis Earl of Shrewsbury and his heirs And after the 2d. Mariae ca. 3. The Stat. of 7. Edw. VI. for dissolving that Bishoprick is repeal'd but the Mansion-house of Coldharborrowe and other Tenements in London so granted to the said Earl be confirm'd And the Bishop by that Act prayeth a recompence from the Queen at his charge Whereupon Queen Mary about anno V. or VI. of her reign granteth to the said Bishop of Durham her reversion of Durham-place in succession which coming into possession by the death of Queen Elizabeth the late Bishop of Durham now Lord Arch-bishop of York enter'd into and enjoy'd the same in the right of his See by opinion of the chief Justices of the Land referr'd by the King being opposed by Sir Walter Rawleigh as likewise doth the now Bishop of Durham 8. The Bishop of LICHFEILD and COVENTRY of old call'd the Bishop of Chester before the new erection of the new Bishoprick of Chester had his Place where Somerset-house is builded 9. 10. As likewise the Bishops of WORCESTER and LANDAFF had there sometime a house as Stow in his Book of Survey of London saith But the said three Bishops Places together with a Parish Church call'd Straunde-Church and the greatest Inn of Chancery call'd Straunde-Inn belonging to the Middle Temple were defaced without recompence to any of the said three last mentioned Bishops Parish Church or Inn of Chancery Other than to the Bishop of WORCESTER who had in respect of his former house a house in the White Fryers which he enjoyeth 11. Arondell-house now the Lord Admiral 's was the Bishop of BATH and WELLS'S and was assured in Edw. VI. time to Admiral Seymer and is now quite sever'd from that Bishoprick without recompence 12. Likewise the Bishop of EXETER'S Place after call'd Paget Leicester and Essex-house of the several Owners of the same And it is thought the Bishop of Exeter hath likewise no recompence for the same of any other house in or near London 13. The Bishop of SARUM'S Place now call'd Dorset-house before call'd Sackvile-house and of former time Salisbury Court being in long Lease made by Bishop Capon who was Bishop there in Hen. VIII Edw. VI. and Queen Mary's time was exchang'd temp Reginae Elizabethae by the great Learned Reverend Father Bishop Jewel for recompence of good value in Lands in his Diocess or elsewhere in the West Country 14. The Bishop of St. DAVID'S Place was near adjoyning to Bridewell upon the ditch that runneth to Fleet-bridge into the Thames and was granted in Fee-farm for a Mark Rent temp Edw. VI. to Dr. Hewick the Physician under which purchase the same is now enjoy'd 15. The Bishop of HEREFORD'S Place as Stow in his Survey of London pag. 357. saith is in the Parish of St. Mary de Monte alto or Mount-halt in London of which Bishops Patronage the said Church also is which Place is in the tenure of the Bishop of Hereford or his Tenants 16. 17. The Bishop of LONDON'S Place at Pauls was never sever'd from the Bishop's possession And likewise ELY Place from the Bishop of that See other than such part thereof as the late Lord Chancellor Hatton had by Lease for many years from the late Bishop Cox 18. The Bishop of BANGOR'S house is or lately was Mr. Aleworth's house
seqq a name not well agreeing with Feodal servitudes But it seemeth by divers abby-Abby-books that some Estates for life which we call Frank tenements were also put in writing especially among the latter Saxons Yet were not these accounted bocland for they were laden commonly with many feodal and ministerial services whereas bocland as I said was free from all services not holden of any Lord the very same that Allodium descendable according to the common course of Nations and of Nature unto all the sons and therefore called Gavelkind not restrain'd to the eldest son as feodal lands were not at first but devisable also by will and thereupon called Terrae testamentales as the Thane that possessed them was said to be testamento dignus Folcland was terra vulgi the land of the vulgar people who had no estate therein but held the same under such rents and services as were accustomed or agreed of at the will only of their Lord the Thane and it was therefore not put in writing but accounted proedium rusticum ignobile But both the greater and the lesser Thanes which possessed Bocland or hereditary lands divided them according to the proportion of their estates into two sorts i. e. into Inland and Outland The Inland was that which lay next or most convenient for the Lord's Mansion-house as within the view thereof and therefore they kept that part in their own hands for supportation of their family and Hospitality The Normans afterwards called these lands terras dominicales the Demains or Lord's lands The Germans terras indominicatas lands in the Lord 's own use The Feudists terras curtiles or intra curtem lands appropriate to the Court or House of the Lord. Outland was that which lay beyond or out from among the Inlands or Demeans and was not granted out to any Tenant hereditarily but like our Copy-holds of ancient time having their original from thence meerly at the pleasure of the Lord. Cujacius speaking of this kind of land calleth it proprium feudum that is to say such land as was properly assigned for Feodal lands Proprium feudum est saith he extra curtem consistit in praediis As if he should say That land properly is a Feud or Feudal land which lyeth without the Demains of the Mannour and consisteth in land not in houses We now call this Outland the Tenants land or the Tenancy and so it is translated out of Biritrick's will in the Saxon tongue This Outland they subdivided into two parts whereof one part they disposed among such as attended on their persons either in war or peace called Theodens or lesser Thanes after the manner of Knights Fees but much differing from them of our time as by that which followeth shall appear The other part they allotted to their Husbandmen whom they termed Ceorls that is Carles or Churles And of them we shall speak farther by and by when we consider all the degrees aforesaid beginning with the Earl CHAP. VI. Of Earls among our Saxons AN Earl in the signification of Comes was not originally a degree of dignity as it is with us at this day but of Office and Judicature in some City or portion of the Country circumscribed anciently with the bounds of the Bishoprick of that Diocess for that the Bishop and the Earl then sat together in one Court and heard jointly the causes of Church and Common-wealth as they yet do in Parliament But in process of time the Earl grew to have the government commonly of the chief City and Castle of his Territory and withal a third part of the King's profits arising by the Courts of Justice Fines Forfeitures Escheats c. annexed to the office of his Earldom Yet all this not otherwise than at the pleasure of the King which commonly was upon good behaviour and but during life at most This is apparent by the severe injunction of King Alfred the Great labouring to plant literature and knowledge amongst the ignorant Earls and Sheriffs of his Kingdom imposed upon them That they should forthwith in all diligence apply themselves to the study of wisdom and knowledge or else forgoe their Office Herewith saith Asser Menevensis who lived at that time and was great with the King the Earls and Sheriffs were so affrighted that they rather choose insuetam disciplinam quam laboriose discere quam potestatum ministeria dimittere that is To go at last to the School of knowledge how painful soever rather than to lose their offices of Authority and degrees of Honour which Alfred there also declareth that they had not by Inheritance but by God's gift and his Dei saith he dono meo sapientium ministeria gradus usurpatis This is manifest by divers other authorities and examples in my Glossary in verbo Comes as the Reader if he please may there see Some conjecture that Deira and Bernicia in Northumberland and Mercia in the midst of England were Feudal and hereditary Earldoms in the Saxon times Those of Northumberland presently after their first arrival under Hengistus about the year 447. that of Mercia by the gift of Alfred the Great about the year 900. to Ethelredus a man of power in way of marriage with his daughter Ethelfleda but for ought I see it is neither proved by the succession of those Earldoms nor our Authors of Antiquity For my own part I think it not strange that there was not at the entry of the Saxons a Feudal and Hereditary Earldom in all Christendom As for this our Britain the misery of it then was such as it rather seemed an Anarchy and Chaos than in any form of Government Little better even in Alfred's days through the fury of the Danes tho' he at last subdued them for his time How soever three or four examples in five hundred years before the Conquest differing from the common use is no inference to overthrow it especially in times unsettled and tumultuous The noble Earldom of Arundel in our days of peace differeth in constitution from all the other Earldoms of England yet that impeacheth not their common manner of succession Loyseau and Pasquier learned Frenchmen speaking of the Dukes and Earls of France which England ordinarily followeth and sometimes too near the heels justifie at large what I have said shewing the Dukes and Earls in the Roman Empire from whose example others every where were derived were like the Proconsuls and Presidents of Provinces simple Officers who for their entertainment had nothing else but certain rights and customs raised from the people which we in England called Tertium denarium And that the Dukes and Earls of France were Officers in like manner but had the Seigneurie of their territory annexed to their Office so that they were Officers and Vassals both at once that is to say Officers by way of Judicature and Vassals whom we call Feodal tenants for their Seignories of Dukedoms and