Selected quad for the lemma: england_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
england_n	council_n	lord_n	privy_a	4,231	5	10.1951	5	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A61094	Reliquiæ Spelmannianæ the posthumous works of Sir Henry Spelman, Kt., relating to the laws and antiquities of England : publish'd from the original manuscripts : with the life of the author.	Spelman, Henry, Sir, 1564?-1641.; Gibson, Edmund, 1669-1748.	1698 (1698)	Wing S4930; ESTC R22617	259,395	258

Reliquiae Spelmannianae THE POSTHUMOUS WORKS OF Sir HENRY SPELMAN Kt. Relating to the LAWS and ANTIQUITIES OF ENGLAND Publish'd from the ORIGINAL MANUSCRIPTS With the LIFE of the AUTHOR Sine dubio domus Jurisconsulti est totius oraculum Civitatis Cicero OXFORD Printed at the THEATER for Awnsham and John Churchill at the Black-Swan in Pater-Noster-Row LONDON 1698. Imprimatur JOH MEARE VICE-CAN OXON Jan. 17. 1698. TO THE Most Reverend Father in God THOMAS LORD ARCH-BISHOP OF CANTERBURY PRIMATE of All ENGLAND And METROPOLITAN And one of his Majesty's most Honourable Privy Council MY LORD I BEG leave to lay before your Grace these Posthumous Discourses of Sir Henry Spelman promising them a favourable reception both for their own worth and for the sake of their Author He was a Person endow'd with those excellent Qualities which never fail to recommend others to your Grace's good opinion and esteem A Gentleman of great Learning and a hearty Promoter and Encourager of it In his Temper Calm and Sedate and in his Writings Grave and Inoffensive a true lover of the Establisht Church and a zealous maintainer of her Rights and Privileges In which respect the Clergy of this Nation were more particularly engag'd to Him because being a Lay-man and so not lyable to the suspicion of Prejudice or Interest his Reasonings carry'd in them a greater weight and authority than if they had come from one of their own Order I might add as some sort of excuse for this Trouble that He had the honour to be particularly respected by two of your Grace's Predecessors and some of his Posthumous Works by a third Arch-bishop Abbot and his immediate Successor were the chief Encouragers of the First Volume of his Councils and after his death the Second Part of his Glossary was publisht by the procurement of Arch-bishop Sheldon So that these Papers have a kind of hereditary right to your Grace's Protection All the share that I have in this Work is the handing it into the World and to make the first Present to your Grace would be no more than a decent regard to the Eminence of your Station though I had no particular obligation to do it But in my Circumstances I should think my self very ungrateful if enjoying so much Happiness under your Grace's Patronage I should omit any opportunity of expressing my Thankfulness for it Especially since such small Acknowledgements as this are the only Returns that I can ever hope to make for the Encouragement which You daily afford to Your GRACE'S most obliged and most dutiful Servant EDMUND GIBSON THE PREFACE I Shall not make any Apologie for the publication of these Treatises They seem'd to me to be very useful towards a right understanding of the Laws and Antiquities of England and I hope they will appear so to others too Nor need I endeavour to recommend them to the world any otherwise than by shewing them to be the genuine Labours of Sir H. Spelman whose Learning Accuracy and Integrity are sufficiently known The first of them concerning Feuds and Tenures in England was written in the Year 1639. and is printed from a fair Copy in the Bodleian Library corrected with Sir Henry Spelman's own hand The Occasion of writing it was the Great Case of Defective Titles in Ireland as may be gathered in some measure from the hints that our Author has given us but is much more evident from the Case it self printed afterwards by order of Thomas Viscount Wentworth the then Lord Deputie The Grounds thereof with the Pleadings and Resolutions so far as they concern the Original of Tenures were in short thus The several Mannours and Estates within the Counties of Roscomon Sligo Mayo and Gallway in the Kingdom of Ireland being unsettl d as to their Titles King James I. by Commission under the Great Seal dated the 2d day of March in the 4th Year of his Reign did authorize certain Commissioners by Letters Patents to make Grants of the said Lands and Mannours to the respective Owners Whereupon several Letters Patents to that effect passed under his Majesties Great Seal by virtue of the said Commission for the strengthening of Titles that might otherwise seem defective And afterwards in the Reign of King Charles I. upon an Enquirie into his Majestie 's Title to the Countie of Mayo there was an Act of State publisht commanding all those who held any Lands in that County by Letters Patents from the Crown to produce them or the Enrollment thereof before the Lord Deputie and Council by a certain day To the end that they might be secur'd in the quiet possession of their Estates in case the said Letters were allow'd by that Board to be good and effectual in Law In pursuance of this Order several Letters Patents were produc'd and particularly the Lord Viscount Dillon's which last upon the perusal and consideration thereof by his Majestie 's Council were thought to be void in Law And therefore it was order'd by the Lord Deputie and Council that the doubt arising upon the Letters Patents should be drawn up into a Case and that Case to be openly argu'd at the Council-Board The Case was drawn up in these words King James by Commission under the Great Seal dated the second day of March in the fourth year of his Reign did authorize certain Commissioners to grant the Mannour of Dale by Letters Patents under the Great Seal of this Kingdom to A. and his heirs and there is no direction given in the said Commission touching the Tenure to be reserv'd There are Letters Patents by colour of the said Commission pass'd unto A. and his heirs to hold by Knights Service as of his Majesties Castle of Dublin Here it was agreed on all hands that the Letters Patents were void as to the Tenure and that the Commissioners had acted beyond their Commission in reserving a mean Tenure to the prejudice of the King when they ought either to have reserv'd an express Tenure by Knight's Service in Capite or have mention'd no Tenure at all but have left the Law to imply a Tenure in Capite The question therefore was Whether the deficiency of the Tenure did so far affect the Grant as wholly to destroy the Letters Patents Or Whether the Letters Patents might not be good as to the Land and void only as to the Tenure The Case was argu'd several days by Counsel on both sides and was afterwards deliver'd up to the Judges who were requir'd by the Lord Deputie and Council to consider of it and to return their Resolution But upon private Conference not agreeing in their Opinions it was thought necessary for publick satisfaction to have it argu'd solemnly by them all which was accordingly done And when it came to be debated whether the reservation of a Tenure so different from that intended and warranted by the Commission could make void the whole Grant this happen'd to lead them to a more general Enquirie What the reservation of a Tenure is

text of customs And to clear the doubt in the elder Edition publish'd by Tottill 12. June 1556. no such thing is mention'd but if it were there are such other differences in their copies as both their authorities may be question'd and I in the mean time well delivered from this objection Let us see what followeth Fourthly For the antiquity of Wardships in England and Scotland See also says the Report Hector Boet. lib. 2. Buchanan rerum Scot. lib. 6. and the laws of Malcome II. which prove the antiquity of Wardships in Scotland and in England before the Conquest For in those times it is probable the laws of both Nations did not much differ as for the times after it appears they did not by comparing their Regiam Majestatem with our Glanvil Neither is the bare conjecture of Sir Henry Spelman sufficient to take away the force of those laws Vid. Spelman's Glossary verbo Feudum Upon all this saith the Report they the Justices of Ireland did conclude and proceed to sentence With the sentence as a sacred thing I will not meddle But as touching that part of this argument which In nostros fabricata est machina muros I 'm tyed either to answer or to submit For Hector Boethius therefore I confess the place to be truly alledg'd and that hitherto hath seldom happened but for the credit of that Author I wish Leland were alive to deliver the censure he hath left upon him with his own mouth I forbear it True it is he relateth that Malcolm II. gave all his lands well nigh unto his Nobility in reward of their service and that they in thankfulness to support his dignity regranted unto him Vardam Desponsationem releviam al. relevatam Wardship and Marriage of their Heirs within age and Relief of those of full age The Paragraph there is long but to the effect we spoke of It is also true that Buchanan doth report the like and since him Cameraris and a little before them all Johannes Major but all their harping is from the sound of one string which in the Report is not left unstrain'd i. e. the laws of Malcolme before mention'd where it is said that ad montem placiti in Villa de Scona omnes Barones concesserunt sibi Wardam Releviam de Haerede cujuscunque Baronis defuncti ad sustentationem Domini Regis Which because they concern a noble Kindom and have been receiv'd as authentical by an ancient Parliament I will not presume to contradict it But I humbly offer to the consideration of the Learned of that Kingdom and to those of ours and theirs that are conversant in Antiquities these particulars following First It being agreed which the Scots affirm that Malcolm II. began his reign in the year 1004. i. e. above 60. years before the Normans Conquer'd England how it cometh to pass that Malcolm useth so many Norman words in his Scottish Laws and whether those words be found in any other monument there before for in England it was not so Secondly Whether their Kings then had not only a Seal but magnum sigillum in the custody of the Chancellor and set-fees appointed for the use of it for in England it was not so tho Edward the Confessour had a Seal after Malcolm's time Thirdly Whether they had brevia clausa in cera and other ordinary instruments seal'd cum magno sigillo and fees appointed for it for in England it was not so Fourthly Whether they had solemn presentations to Churches and Hospitals under Seals in that manner for this was long before the Council of Lateran Fifthly Whether they had then the names of Barons Seneschallus Constabularius Mareschallus not in use in England in the time of the Confessour as appeareth for the two latter by the Appendix to the Confessours laws and for their Seneschallus called their Steward Buchanan says he was brought in by Malcolm III. into Scotland Sixthly Whether the Norman Officers of Justiciarius Vicecomes Coronator Ballivus c. were then in use by any other proof than by or from these laws sic de caeteris Many other things I pretermit and take no exception to the frequent mention of Pounds and Shillings tho' I know they were scarce with them in Scotland as not abundant then in England but paid in Truck and Cattel But I admit that which the Report saith that in those times it is probable the laws of both Nations did not much differ As for the times after it appeareth they did not by comparing their Regiam Majestatem with our Glanvil They run much I confess paribus vestigiis and oftentimes totidem verbis iisdem paragraphis Whether of them leads or follows the other I dare not define and am loath to dispute The Preface to the Regia Majestas sheweth it to be written at the command of King David whom Skeneus in his Annotations calleth the first and saith he began to reign Anno 1124. i. e. 24. or 25. of Hen. I. And 't is certain that our Glanvil was not written till the time of Hen. II. who began not to reign till 1154. so that if this be true it must needs follow that we took a great part of the modell of our laws or at least the expression of them from the Scots which our Ancestors never yet acknowledg'd It may perhaps fall out upon better examination that David I. may be mistaken for David II. But for the part of Malcolm II's laws which speak of Wardship Marriage and Relief in Scotland at that time to have risen from their own Nobility Buchanan himself recedeth from that opinion and concludes Hun● morem ab Anglis Danis potius acceptum credo quod in tota Anglia parte Normanniae adhuc perseveret And Demster himself their greatest Antiquary ingeniously consesseth that there were no Barons in Scotland till Malcolm III. created them And he might well take his precedent from the Conquerour for he liv'd all the time of the Conquerour and about seven years after so that if there were no Barons in Scotland in the time of Malcolm II. as Demster affirmeth or the precedent taken out of England for Wardship as Buchanan believeth then could not this law be made in Malcolm II's time but seemeth rather by both their opinions to be ascrib'd to Malcolm III. and that the error hath risen as easily it may in writing II. for III. But in the mean time all this makes no proof against me CHAP. XV. No Marriage of Wards AS for Marriage it is here and in some other places mention'd by the Report but not a word any where to prove that it belonged to the Lord in the Saxon time I will help them with what I meet in the old MS. Book of Ramsey Sect. 120. where it is said that one Edwine son of Othulf gave five hides of land to Archbishop Odo Pro eo quod Regem Edredum inflexerat ut ei liceret

the others lost their priviledge and came to be Term-days I cannot find it sufficeth that Custome hath repealed them by confession of the Canonists Yet it seemeth to me there is matter for it in the Constitutions of our Church under Islepe Arch-bishop of Canterbury in the time of Edward III. For tho' many ancient Laws and the Decretals of Gregory IX had ordained Judicialem strepitum diebus conquiescere feriatis yet in a Synod then holden wherein all the holy-days are appointed and particularly recited no restraint of Judicature or Forensis strepitus is imposed but a cessation only ab universis servilibus operibus etiam Reipublicae utilibus Which tho' it be in the phrase that God himself useth touching many great Feasts viz. Omne servile opus non facietis in iis yet it is not in that wherein he instituteth the seventh day to be the Sabbath Non facies omne opus in eo without servile Thou shalt do no manner of work therein Now the Act of Judicature and of hearing and determining Controversies is not opus servile but honoratum plane Regium and so not within the prohibition of this our Canon which being the latter seemeth to qualifie all the former Yea the Canonists and Casuists themselves not only expound opus servile of corporal and mechanick labour but admit twenty six several cases where even in that very kind dispensation lieth against the Canons and by much more reason then with this in question It may be said that this Canon consequently giveth liberty to hold plea and Courts upon other Festivals in the Vacations I confess that so it seemeth but this Canon hath no power to alter the bounds and course of the Terms which before were settled by the Statutes of the Land so that in that point it wrought nothing But here ariseth another question how it chanceth that the Courts sit in Easter-Term upon the Rogation-days it being expresly forbidden by the Council of Medard and by the intention of divers other Constitutions It seemeth that it never was so used in England or at least not for many ages especially since Gregory IX insomuch that among the days wherein he prohibiteth Forensem strepitum clamourous pleading c. he nameth them not And tho' he did yet the Glossographers say that a Nation may by Custom erect a Feast that is not commanded by the Canons of the Church Et eodem modo posset ex consuetudine introduci quod aliqua quae sunt de praecepto non essent de praecepto sicut de tribus diebus Rogationum c. To be short I find no such priviledge for them in our Courts as that they should be exempt from suits tho' we admit them other Church rites and ceremonies We must now if we can shew why the Courts sitting upon so many Ferial and holy-days do forbear to sit upon some others which before I mention'd the Purification Ascension St. John Baptist All-Saints c. For in the Synod under Islepe before mention'd no prerogative is given to them above the rest that fall in the Terms as namely St. Mark and St. Philip and Jacob when they do fall in Easter-Term St. Peter in Trinity-Term St. Luke and SS Simon and Jude in Michaelmass-Term It may be said that although the Synod did only prohibit Opera servilia to be done on Festival-days as the offence most in use at that time yet did it not give licence to do any Act that was formerly prohibited by any Law or Canon And therefore if by colour thereof or any former use which is like enough the Courts did sit on lesser Festivals yet they never did it on the greater among which as majoris cautelae gratia those Opera servilia are there also prohibited to be done on Easter-day Pentecost and the Sunday it self Let us then see which are the greater Feasts and by what merit they obtain the priviledge that the Courts of Justice sit not on them As for Sunday we shall not need to speak of it being canonized by God himself As for Easter and Whitsunday they fall not in the Terms yet I find a Parliament held or at least begun on Whitsunday But touching Feasts in general it is to be understood that the Canonists and such as write De Divinis Officiis divide them into three sorts viz. Festa in totum duplicia simpliciter duplicia semiduplicia And they call them duplicia or double Feasts for that all or some parts of the service on those days were begun Voce Duplici that is by two singing-men whereas on other days all was done by one Our Cathedral Churches do yet observe it I mean not to stay upon it look the Rationale which Feasts were of every of these kinds The ordinary Apostles were of the last and therefore our Courts made bold with them But the Purification Ascension St. John Baptist with some others that fall not in the Term were of the first and because of this and some other prerogatives were also called Festa Majora Festa Principalia dies novem Lectionum ordinarily double Feasts and Grand days Mention is made of them in an Ordinance 8. Edw. III. That Writs were ordained to the Bishops to accurse all and every of the perturbers of the Church c. every Sunday and double Feast c. But we must needs shew why they were called Dies novem Lectionum for so our old Pica de Sarum styleth them and therein lyeth their greatest priviledge After the Arian Heresie against the Trinity was by the Fathers of that time most powerfully confuted and suppressed the Church in memory of that most blessed victory and for better establishing of the Orthodox Faith in that point did ordain that upon divers Festival-days in the year a particular Lesson touching the nature of the Trinity besides the other eight should be read in their service with rejoycing and thanksgiving to God for suppressing that horrible Heresie And for the greater solemnity some Bishop or the chiefest Clergy-man present did perform that duty Thus came these days to their styles aforesaid and to be honoured with extraordinary Musick Church-service Robes Apparel Feasting c. with a particular exemption from Law-Tryals amongst the Normans who therefore kept them the more respectively here in England Festa enim Trinitatis saith Belethus digniori cultu sunt celebrandi In France they have two sorts of Grand days both differing from ours First they call them Les Grand jours wherein an extraordinary Sessions is holden in any Circuit by virtue of the King's Commission directed to certain Judges of Parliament Secondly those in which the Peers of France hold once or twice a year their Courts of Haught Justice all other Courts being in the mean time silent See touching these Loyseau De Seigneures To come back to England and our own Grand days I see some difference in accounting of them