that make me think that our wealth should continue with us better now than in times past it hath done are for that the Roman-coffers are not now glutted as they have been with English-treasure continually flowing into them For it is a world to consider the huge stocks of mony that those cozening Prelates have heretofore extorted out of her Majesties Kingdoms by their Antichristian and usurpt Supremacie As by Pope Innocent constraining King John to redeem his Crown at his hands and to take it for ever in farm for the yearly rent of 1000. marks to be paid to him and his Successors By causing Henry III. to maintain his wars against Frederick the Emperor and Conrade King of Sicil By drawing from our Kings many contributions and benevolences By laying upon their Subjects as well temporal as spiritual tenths and taxes in most ravenous manner and that very often So that in the time of Henry III. the Realm was by such an extream tax mightily impoverished as our Chronicles witness as also at many other times since and before For when the Pope was disposed to use mony he would tax our people as if they had been his natural Subjects by many Congratulations of the Clergy as 11000. marks at one pull to Pope Innocent IV. by private Remembrances from single Bishops as 9500. marks from the Arch-bishop of York to Pope Clement V. in An. 34. or 35. Edw. I. and from divers of them jointly 6000. marks to the foresaid Innocent By their rich Revenue of the First-fruits and Tenths as well of the Archbishopricks as of all other Spiritual Livings now reannext unto the Crown by the Parliament in the first of her Majesty By Installing Consecrating and Confirming Bishops By dealing Benefices By appellations to the Church of Rome By giving definitive Sentences By distributing heavenly Grace By granting Pardons and Faculties By dispensations of Marriages Oaths and such like By selling their blessed trumpery and many such other things that I cannot reckon whereof that merchandizing Prelate knoweth full well how to make a Commoditie according to the saying of Mantuan Venalia nobis Templa Sacerdotes Altaria sacra Coronae Ignis thura preces coelum est Venale Deusque All this consider'd and that the summs of mony by them receiv'd before the time of Henry VIII were according to the value of our Coin at this day three times as much as before is shewed you must needs confess that the fat of the Land larded the Roman dishes whilst our selves teer'd upon the lean-bones Besides it must not be forgotten that one tenth granted to the Pope impoverisht the Realm more than ten unto the King For what the King had was at length return'd again among the Subjects little thereof going out of the Land much like the life-blood which tho' it shifteth in divers parts yet still continueth it self within the body But whatsoever came into St. Peter's pouch was lockt up with the infernal key Et ab infernis nulla est redemptio England might lick her lips after that it came no more among her people Thus we were made the Bees of Holy-Church suffer'd to work and store our hives as well as we could but when they waxed any thing weighty his Legates were sent to drive them and fetch away the honey Yea if his Holyness were sharp sett indeed he would not stick to use a trick of Husbandry rather burn the Bees than want the honey I may tell you too his Legates and Nuncio's were ever trim fellows at licking of the hive as in our Chronicles you may read abundantly Viand You have made the matter so plain that I must needs grant that our treasure goeth not out of the Land in any comparable measure as it did in times past For as you say tho' these actions of the Low-Countries France Portugal and other places hath somewhat suck'd us yet I consider that we have ever had such a vent even in the several days of our Kings as in the time of Queen Mary King Edw. VI. King Henry VIII c. Selv. Their occasions indeed are best known unto us because many men living were witnesses thereof But I will recite unto you cursorily somewhat of the rest that you may the better be satisfy'd that it is no novelty in England And for to begin with Henry II. what store of treasure think you was by him and his wasteful sons whereof two namely Henry and John were Kings as well as himself daily carry'd into France Flanders Saxony Sicil Castile the Holy-land and other places sometime about their wars and turbulent affairs other some time for Royal expence about meeting feasting and entertaining the French King the Pope foreign Princes and such other occasions the particular whereof were too long to recite But we may well think that England must needs sweat for it in those days to feed the riotous hands of three several Kings spending so much of their time on the other side the Seas as they did The like was done by Richard I. about his ransome and business with the Emperor and Leopold Duke of Austria about his wars in France and the Holy-land where it is said that by estimation he spent more in one month than any of his predecessors ever did in a whole year By Henry III. about the affected Kingdom of Sicil and his wars in Gascoigne and other parts of France and in bounty to strangers He at one time sent into France at the direction of the Poictovins 30. barrels of Starling Coin for payment of foreign Souldiers and at another time these his wasteful expences being cast up the summ amounted to 950000. marks which after the rate of our allay encreaseth to By Edw. I. about his Actions of Guien Gascoigne France Flanders and the Conquest of Scotland and the striking of a League with Adolph the Emperor Guy Earl of Flanders John Duke of Brabant Henry Earl of Bar Albert Duke of Austria and others against the French King and Earl Jo. of Henault his partaker By Edw. III. about his Victories and designs in France and elsewhere which exhausted so much treasure as little or none almost remain'd in the Land as before is shewed By Henry IV. about the stirs of Britain and in supportation of the confederate faction of Orleance By Henry V. about his Royal Conquest of France By Edw. IV. in aiding the Duke of Burgundy and in revenging himself upon the King of France By Henry VII about his wars in France in annoying the Flemings in assisting the Duke of Savoy and Maximilian King of the Romans I need not speak of Henry VIII whose foreign Expences as they were exceeding great so they are sufficiently known to most men Neither have I more than lightly run over the rest who besides these that I have spoken of had many other foreign charges of great burden and much importance and yet not so much as once touch'd by me as Marriage of their Children with foreign Princes Treaties
103. Camden in Bark-shire Selden in Eadmer p. 154. That Wardships were then in use and not brought in by the Normans as Camden in his Britt 178. Nor by Hen. III. as Randolph Higden in his Polichronicon and others not understanding him would perswade Vid. Seldens Notes on Fortescue 51. Among the priviledges granted by Edward the Confessor to the Cinque-ports we meet with this that their heirs shall shall not be in Ward Lambards Perambulat of Kent 101. And in the Customs of Kent which are in the Magna Charta of Tottels Edition and in Lambards Perambulation There is a Rule for the Wardship of the heir in Gavelkind and that he shall not be marryed by the Lord. And those Customs say of themselves that they were Devant le Conquest en le Conquest For the Antiquity of Wardships in England and Scotland see also Hect. Boet. lib. 11. Buchanan rerum Scot. lib. 6. and the Laws of Malcolm II. which prove the Antiquity of Wardships in Scotland and therefore in England before the Norman 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 and our Glanvil Neither is the bare conjecture of Sir Henry Spelman sufficient to take away the force of those Laws Vid. Spelman Glossar verbo Feudum Upon this amongst other reasons they did conclude That upon consideration of the Authority given and Grant thereupon made the reservation of the Tenure cannot be said to be Aliud So. a separate and distinct thing from the Authority of Granting the Land but rather included within it And that the Reservation of the Tenure though it be not Ipsa concessio the Grant it self yet it is Modus concessionis and a part of the Grant and that therefore the Authority being not pursued in that the whole Grant is void These were their Arguments for Tenures among the Saxons as they are set down in the Case it self drawn up and Printed by Order of the Lord Deputie Sir Henry Spelman has severally consider'd both the Truth and Force of them not strictly confining himself to their Reasons and Reflections but taking occasion from thence to write a very elaborate Treatise of the Nature and Original of Feuds and Tenures The two discourses Of the ancient Government of England and Of Parliaments are both of them publisht from the Original Manuscripts in the hands of Mr. Charles Spelman of Congham in Norfolk son of Sir John Spelman and Grandson to Sir Henry That concerning the Original of the four Terms was publisht in the Year 1684. from a very uncorrect and imperfect Copy which probably had been taken when the Author first wrote the Discourse The Original Manuscript with very many Additions and Corrections that Sir Henry afterwards made in it is preserv'd in the Bodleian Library from whence the Work is now printed entire The Apology for Arch-bishop Abbot by an unknown Author and the Answer to it by Sir Henry Spelman are in the posâ—ession of Mr. Henry Spelman son to Mr. Clement Spelman who was Sir Henry's youngest son both written with our Author 's own hand To this Answer he refers us in his Glossary under the title Muta Canum The Letters relating to the same subject are in a Collection of Original Papers and Records deliver'd to Mr. Wharton by Arch-bishop Sancroft and now in the hands of Mr. Châ—â—wel The Treatise of the Original of Testaments and Wills and his Icenia or the description of Norfolk are both publisht from the Author 's own Copies in the Bodleian Library The latter of these is not so compleat as he had intended to make it The Catalogue of the Earls Marshal of England and the Dissertation de Milite were evidently design'd for a part of his Glossary as appears from the manner of the Composition and from several passages in them But when the Papers were deliver'd to Sir William Dugdale for the publication of the second part of that Work these two it seems had been mislaid The account of the Earls Marshal is I fear imperfect in some places but will however be of good use towards a more accurate Catalogue of them The succession of the Family of Sharnburn is a peice of Antiquity that was exceedingly valu'd by Sir Henry Spelman as appears both from his Recommendation and from the use that he has made of it in some part of his Works Having met with a Copy in Mr. Ashmole's Museum at Oxford I thought it might not be improper to publish it among his Remains The Dialogue concerning the Coin of the Kingdom and the Catalogue of the Places of the Arch-bishops and Bishops of this Realm are in the possession of Mr. Charles Spelman The first is written in a hand not unlike Sir Henry Spelman's only somewhat less which if it was really his may have been occasion'd by his writing it while he was young For it appears to have been compos'd in the 36. of Elizabeth when Sir Henry was but about thirty three years of age The Catalogue was drawn up in the time of King James I. for the use of the then Arch-bishop of Canterbury as I gather from those words in the beginning written in a different hand Pro Domino Archiepiscopo Cantuar. I dare not positively affirm that either of these is Sir Henry Spelman's but the finding them among his other Papers and the accurate knowledge of our English affairs which appears in both incline me to believe that he was really the Author of them and for that reason they are printed upon this occasion This is all I have to say concerning the Posthumous Works of Sir Henry Spelman which I was willing to make publick for the Author's reputation and the service of the World THE LIFE OF Sir Henry Spelman Kt. HENRY SPELMAN was born at Congham a Town in Norfolk near Lynn He was descended from an ancient Family of that name who about Henry the III's time were seated in Hampshire but afterwards remov'd into Suffolk and from thence into Norfolk about 200. years since His Father's name was Henry Spelman Esq as I learn from a Pedigree of the Family under Sir Henry's own hand and not John as a late Writer has told us His Mother was Frances daughter of William Sanders of Ewel in Surrey Esq After his Education at School he was sent to Trinity Colledge in Cambridge before he was quite 15. years of Age and indeed as he himself complains before he was ripe for the University He had not stay'd there two years and a half but his Father dy'd and he was call'd home to assist his Mother in the management of the Family Afterwards when he came into the World and betook himself to Writing and the study of our Laws he found the want of University Education and condoles his misfortune in that particular in a Letter to his friend Mr. Richard
p. 121. VIII Of the Original of Testaments and Wills and of their Probate to whom it it anciently belong'd p. 127. IX Icenia sive Norfolciae Descriptio Topographica p. 133. X. Catalogus Comitum Marescallorum Angliae p. 165. XI Dissertatio de Milite p. 172. De aetate Militari p. 174. De evocatis ad Militiam suscipiendam p. 175. De modo â—reandi Militem honoratum primo de Cingulo militari p. 176. Qui olim fiebant Milites p. 179. Qui possint militem facere p. 180. Judices etiam sub appellatione Militum censeri scil Equ esse Palatinos p. 182. De loco tempore Creationis p. 183. De Censu militari p. 184. Modus Exauctorandi Militem quod Degradare nuncupatur XII Historia Familiae de Sharnburn p. 187. XIII Familiae Extraneorum sive Lestrange accurata descriptio p. 200. XIV A Dialogue concerning the Coin of the Kingdom particularly what great treasures were exhausted from England by the usurpt Supremacy of Rome p. 203. XV. A Catalogue of the Places or Dwellings of the Arch-bishops and Bishops of this Realm now or of former times in which their several Owners have Ordinary Jurisdiction as if parcel of their Diocess tho' they be situate within the precinct of another Bishop's Diocess p. 211. THE Original Growth Propagation and Condition OF FEUDS and TENURES BY KNIGHT-SERVICE In ENGLAND CHAP. I. The occasion of this Discourse and what a Feud is IN the great case of Tenures upon the Commission of Defective Titles argued by all the Judges of Ireland and published after their resolution by the commandment of the Lord Deputy this year 1639. it fell out upon the fourth point of the Case to be affirmed That Tenures had their original in England before the Norman Conquest And in pursuit of this Assertion it was concluded That Feuds were then and there in use In proof hereof divers Laws and Charters of the Saxon Kings and some other Authorities be there alledged which being conceived to have clear'd that point it thus followeth in the Report p. 35. And therefore it was said that Sir Henry Spelman was mistaken who in his Glossary verbo Feodum refers the original of Feuds in England to the Norman Conquest And for a Corollary p. 38. addeth these words Neither is the bare conjecture of Sir Henry Spelman sufficient to take away the force of these Laws Vide Spelman in Glossar verbo Feodum Being thus by way of voucher made a chief Antagonist to the Reverend opinion of these learned grave and honour'd Judges I humbly desire of them that writing what I did so long ago and in a transitory passage among a thousand other obscure words not thinking then to be provok'd to this account they will be pleas'd to pardon my mistakings where they fall and to hear without offence what motives led me to my conjectures which they speak of It is necessary therefore that first of all we make the question certain which in my understanding is not done in the Report For it is not declared whether there were divers kinds of Feuds or no nor what kind they were that were in use among the Saxons nor what kind those were that I conjectured to be brought in by the Norman Conqueror I will therefore follow the direction of the Orator and fix the question upon the definition A Feud is said to be Vsus fructâ—s quidam rei immobilis sub conditione fidei But this Definition is of too large extent for such kind of Feuds as our Question must consist upon for it includeth two members or species greatly differing one from the other the one Temporary and revocable as those at Will or for Years Liâ—e or Lives the other Hereditary and perpetual As for Temporary â—euâ—s which like wild fig-trees could yield none of the feodal fruits of Wardship Marriage Relief c. unto their Lords they belong nothing unto our argument nor shall I make other use in setting of them forth than to assure the Reader they are not those that our Laws take notice of To come therefore to our proper Scheme let us see what that Hereditary Feud is whereupon our Question must be fixed for none but this can bear the feodal fruits we speak of Wardship Marriage c. A Feud is a right which the Vassal hath in Land or some immoveable thing of his Lord's to use the same and take the profits thereof hereditarily rendring unto his Lord such feodal duties and services as belong to military tenure the meer propriety of the soil always remaining unto the Lord. I call it as the Feudists do Jus utendi praedio alieno a right to use another mans Land not a property in it for in true feodal speech the Tenant or Vassal hath nothing in the propriety of the soil it self but it remaineth intirely unto the Lord and is comprehended under the usual name which we now give it of the Seignory So that the Seignory and the Feud being joyned together seem to make that absolute and compleat estate of Inheritance which the Feudists in time of old called Allodium But this kind of Feud we speak of and no other is that only whereof our Law taketh notice though time hath somewhat varied it from the first institution by drawing the propriety of the soil from the Lord unto the Tenant And I both conceive and affirm under correction That this our kind of Feuds being perpetual and hereditary and subject to Wardship Marriage and Relief with other feodal services were not in use among our Saxons nor our Law of Tenures whereon they depend once known unto them As shall appear by that which hereafter followeth CHAP. II. The Original Growth and Propagation of Feuds first in general then in England BEfore I enter into the Question in hand it will be necessary for better understanding that which followeth to set forth the original growth propagation and condition of Feuds in general which I conceive to be thus There were no doubt from the beginning of Jus Gentium Lords and Servants and those servants of two sorts Some to attend and guard the person of their Lord upon all occasions in War and Peace Some to manure his Lands for the sustenance of him and his Family When private Families were drawn into a Kingdom the Kings themselves held this distribution Examples hereof are in all Nations King David well observ'd it in the Institution of the Kingdom of Israel where if such services have any shew of Feuds or Tenures we have a pattern for them all viz. For that of Francalmoine in the Levites for Knight-service Tenure in Capite and Grand Serjeanty in the Military men which serv'd the King personally by monthly courses for Socage in those whom David appointed to manure the Fields dress the Vineyards the Olive-trees the Mulberry-trees and that had the care of the Oyl of the Oxen of the Camels Asses Sheep c. For the
now to our greater enrichment return'd again amongst us by dissolution of these Popish Ceremonies Viand You may also reckon the mony given to maintenance of Priests Monkery Lights Obits Anniversaries and all the plate and treasure of the Clergy at that time to be of the same sort Selv. That did Edward the first well consider and therefore to the end that he might dig it out of the grave and bring it abroad again among the people that had need thereof he suffer'd the matter to be so handl'd by one of his Treasurers that certain Captains appointed to work the feat placing their Souldiers in every quarter through the Realm made search at one time in July at three of the clock in the afternoon for all such mony were it hid or laid up in hallowed places and taking the same away brought it unto the King who dissembling the matter as he that stood in need excused the act done by his Treasurer and thought it no offence but rather a good work Besides all this there is yet another means whereby the Treasure of our Land must needs be much encreased and that is by divers good Laws and Statutes made both for causing it to be brought into the Realm and also for containing it within the lists of the same when it is come And that is by the Stat. 14. Edw. III. whereby it was enacted that every man denizen or stranger that should transport any wooll out of the Land should find sufficient sureties to bring again unto the King's Exchange for every sack of wooll transported plates of Silver to the value of two marks And by the Statute of 3. Henry V. confirm'd and quickned by 32. Hen. VI. which provided that every Merchant-stranger buying wooll in England not coming to the Staple to be sold shall bring to the Master of the Mint of the Tower of London of every sack one ounce of Bullion of Gold and in the same manner of three pieces of Tin one ounce of Bullion of Gold or the value in Bullion of Silver upon pain of forfeiture of the same Woolls and Tin or the value thereof to the King It is provided also for containing of mony within the Land that all Merchant-strangers shall employ all the mony receiv'd by them within this Realm upon the Merchandise and Commodities of this Realm deducting their reasonable expences and that they shall give sufficient surety for doing hereof and the trespasser to forfeit and be punished grievously as in the Statutes is contain'd 3. Hen. VII affirming and enlarging 14. Edw. IV. and many other of like effect And by 4. Hen. VII that no man dwelling in England shall pay or deliver wittingly to any Merchant or other born out of the King's obedience for any Merchandise or Wares or in any other wise any Gold coined Plate Vessels Bullion Jewels of Gold or Silver upon pain of forfeiture thereof And by 14. Edw. IV. affirm'd by 4. Hen. VII and for a time continued by 1. and 3. Henry VIII with a mitigation of the bloody penalty all men except such as had the King's Licence or were dispensed with by those Statutes were utterly inhibited from carrying out of the Realm any manner of Coin plate vessel massy Bullion jewels of Gold or Silver Which Law and many other of the like effect tho' they continue not now in force yet the fruit thereof remaineth to us still as Children enrich'd by their Fathers sparings Besides it is not altogether to be passed in silence that our treasure is somewhat increased by the Gold and Silver try'd out of our own Mines here in England Which tho' it be little or nothing in respect that in this latter age we have wimbl'd even into the bowels of Plutus's Treasury the Western Indies yet is it so much as our Historiographers both new and ancient have thought it worth the noting and all our Kings from time to time have made especial account of as well appeareth by a multitude of Leases thereof granted by them to many noble Personages extant in the Checquer Records and also by the process and argument of the Earl of Northumberland's Case concerning a Copper-mine 10. Eliz. which in Plowden's Commentaries is at large reported But be it little or great Many littles as our Adage saith make a great and continual accession amasseth at length to a mighty thing as is well seen in the Hill Testacchio in Rome which standing in a plain and being about half a mile in compass and exceeding in height any Tower in the Town-wall is said to have been made of the shards of the potts wherein the tribute-mony was brought to Rome or as pleaseth rather the more Learned sort of broken potts thrown out of the VII College of Potters built by Numa Pompilius But be it the one or other the semblance serves my turn and there 's an end THE PLACES or DWELLINGS OF THE ARCH-BISHOPS and BISHOPS of this Realm Now or of former times in which Houses their several Owners have Ordinary Jurisdiction and be as parcel of their Diocess as is recited in the Stat. of 33. Hen. VIII ca. 31. altho' they be situate within the precinct of another Bishop's Diocess 1. THe Lords Arch-bishops of CANTERBURY of long time enjoyed and do enjoy Lambeth-house as appeareth in Historia Cantuariensium Archiepiscoporum set forth as is thought by Dr. Ackworth in the Lord Arch-bishop Parker's time The which house was never severed from the Lord Arch-bishop's See of Canterbury since the annexion thereof to that See 2. The house at Lambeth-marsh commonly call'd Carlisle-house was the Bishop of ROCHESTER'S Palace until about 26. Hen. VIII as appeareth in the foresaid Historia Cantuariensis and also in the Act of Parliament of 22. Hen. VIII ca. 9. made against poysoning whereby it doth appear that the house of John Bishop of Rochester was at Lambeth-marsh But afterwards about An. 27. Hen. VIII or after the same being some ways the Kings was convey'd to Robert Aldridge Bishop of CARLILE and his Successors in exchange for his houses near Ivie-bridge now the Earl of Worcester and Salisbury's and other houses there toward the Street and of a yearly Rent of 16l. or thereabouts out of those houses given to the Bishop of Carlile and his Successors for those houses formerly call'd Carlile-place But the said Bishop Aldridge leas'd the house of Lambeth-marsh for some small and not valuable Rent for divers years yet enduring 3. The Bishop of ROCHESTER had given for his Palace to dwell in certain houses lately call'd Rochester-house near adjoining to Winchester-place and sometime as it is reported parcel of the possessions of the Priory of St. Swithins in Winchester but that place is lately divided into several little dwellings 4 WINCHESTER Place with the liberty of the Prison of the Clynke and Bancke belonged and doth belong to the Bishop of Winchester and the house was in Edw. the Sixth's time conveyed to the Marquess of
Surrey 23. King Edgar's Charter of donation of certain Thane-lands 19. Another Charter granted by him to the Monastery of Hide near Winchester 20. By whose advice his Laws were made 61. King Edward the elder how he propos'd his Laws 61. The first that prohibited Law business on Festivals 77. King Edward the Confessor's Charter of donation to Thola 20. Several priviledges granted to the Cinque-Ports 26. His Laws by whom collected 61. His Constitution touching Festivals 79. Edward Earl of Norfolk and Marshal of England 168. Dyed in his minority ibid. Edwin son of Othulf gave certain lands to Arch-bishop Odo 29. Elfere a Saxon bequeath'd Snodland to the Church of St. Andrews 128. Publish'd his Will before Odo Arch-bishop of Canterbury c. 130. Elfstane Bishop of Rochester 130. Elfsy Priest of Croyden 130. Ellingham 161. Elmham 150. Erpingham 151. Erpingham Tho. Commissioner for executing the Office of Earl Marshal of England 169. Escheats the signification of the word 37. No feodal Escheats among the Saxons 37 38. Escuage what in the Empire 36. Neither its name nor rules us'd by the Saxons 37. Essoyning the manner of it not in use before the Conquest 27. King Ethelbald's Charter to the Monks of Croyland 22. Ethelbert the first Christian King of the Saxons 8. He causes his Laws to be put in writing ibid. He took somewhat from the Roman law 102 Etheldreda daughter of K. Alfred her dowry 8. King Etheldred ordain'd every eight Hides of land to find a man for the naval Expedition 17. His Charter of donation to Aethelwold 19. Another Charter granted by him to his Thane Sealwyne ibid. King Ethelstane whom he consulted in making his Laws 61. King Ethelwulfs Charter of priviledges 23. He divided his lands by Will among his three sons 128. Euricus King of the Goths 102. Exauctoratio Militis 185. Expeditio what it signifies in Latin 17. F Fakenham 150. Fasti or Law days among the Romans why so nam d. 72. Seldom two Fasti together 75. Fasti proprie ibid. Fasti intercisi ibid. Fasti Comitiales ibid. All the Fasti not apply'd to Judicature ibid. Fealty the definition of it 35. No Fealty but for a fee. 36. What manner of Fealty among the Saxons ibid. Felbrig 152. Felewell 161. Feodal words none among the Saxons 7 8 9. Feorme what it signifies in the Saxon tongue 15 Ferdwite 37. Festa majora vel principalia 91. Festivals how exempted from Law days 76. The differences of them 91. The Festivals of St. Peter and Paul 92. Of St. George 93. Of Gun-powder Treason ibid. A Feud what it is 1. It s general and particular definition 2. Feuds among the Jews ibid. Among the Gauls 3 Their original 4. Made perpetual and hereditary 5. When and how they became so ibid. Especially in England ibid. The difference between them and Benefices 6 9. The great growth of them ibid. No proper Feuds before the Conquest ibid. Feudal-law generally receiv'd in every Kingdom 5. It s youth infancy and full age 9. Where it had its original ibid. Feudatarii 9. Feudum militare nobile 4. Rusticum ignobile ibid. Feuda majora regalia ibid. The word Feudum or Feodum not us'd in K. Beorredus's days 9. Fideles who 4. Fidelity what 59. Fines for Licence of alienation 33. The Thane-lands free from them ibid. Not in use among the Saxons 34. Fitz-Alan Jo. Lord Maltravers Marshal of England 168. Fitz-Osborn Will. Lord Marshal to King William the Conquerour 165. Flegg 154. Flitcham 145. Flitchamburrough 52 145. Folcland what 12. Not alienated without licence 33 34. Free from homage 35. Ford-Park 110. Forests belong to the King alone 118. Subjects can have 'em only in custody ibid. Fouldage 162. Franc-almoin 2 7. Frank-tenements 12. Freeborgs or Tithings 51. Frekenham 153. G Garbulsham 158. Gavelkind what and why so call'd 12. Observ'd throughout all Kent 43. At first the general Law of all Nations ibid. Germans their Customs and Tenures carry'd into several Countries 5. They receiv'd the Roman Law 127. Gey-wood 143. Gilbert the third son of William the King's Marshal 166. Made Marshal of England ibid. Kill'd in a Tournament ibid. Gimmingham 152. Goths carry the German Laws into Spain Greece c. 5. They were the first that put their Laws in writing 102. Trusted Priests with the passing of wills 130 Government the ancient Government of England 49. c. 53. Grand-days in France and England 92. Grand Serjeanty 2. Grantesmale Hugh Marshal under K. William I. 165. Greeks from whom they had much of their ancient Rites 74 127. Gresham 152. Gressenhall 150. Grey Rad. de exauctoratur 185. Guthrun the Dane 61 77. H Hales 156. Harkela Andr. de exauctoratur 185. Harleston ibid. Hartlebury-park 110. Hawkins Pet Keeper of Bramsil-park wounded by Arch-bishop Abbot 109 c. Hengham 157. King Henry I. imprison'd the Bishop of Durham 62. His Constitution about Festivals and Law-days 81. King Henry II. ratify'd the Laws of Edw. the Confess and Will the Conquerour 81. Henry Bishop of Winchester conven'd K. Stephen to his Synod 132. Heribannum what 17. Heriots paid after the death of great Men. 31 32 To whom forgiven 32. The difference between them and Reliefs 32 33. By whom and when first ordain'd 32. What the word Heriot signifies ibid. Heriots and Reliefs issuing out of the same lands 33. No badge of lands held by Knight-service ibid. Heydon 151. High Courts see Court of Justice Hikifricus Pugil quidam Norfolciensis 138. Hilary-Term its ancient bounds 82 83. The end of it sometimes held in Septuagesima 95. Hockwold 161. Holkham 149. Holland Tho Marshal of England 168. Holland Tho. Earl of Kent Duke of Norfolk 169. Made Earl Marshal of England ibid. Holland Tho. Farl Marshal of England during the minority of John Mowbray 165. Holme in Norfolk 147 152 Homage by whom first instituted 5. Feodal homage 34. Of two sorts ibid. When begun in France and England ibid. The reason of it 34 35. Who are to do it 35. Usual in Soccage-tenure 35. As well a personal as a praedial duty ibid. Homines commendati 35. Hominium homagium what 34. Homagium ligeum ibid Feodale aut praediale ibid. Hoveden Roger when he wrote 31. Howard Sir John Kt. created Duke of Norfolk and Earl Marshal of England 17â— Slain in Bosworth-field ibid. Howard Tho. the son of the former Earl of Surrey 170. Imprison'd in the Tower ibid. Defeated the Scotch under K. Henry VII ibid Made Lord Treasurer of England and restor'd to his fathers dignities ibid. Kill'd James IV. K. of Scotland in battel ib. Sent Ambassadour into France ibid. Made Vice-Roy of England ibid. Where he dy'd ibid. Howard Tho. the fourth Duke of Norfolk of that name and Earl Marshal of England 1â—1 Howard Tho. the Grand-son of the former Earl of Arundel and Surrey ibid. The first Earl of England ibid. Made Earl Marshal for life ibid. Hugh Bishop of Coventry exercis'd the Sheriffs place 116. Excommunicated ibid. De Humâ—z
139. Tylney 138. Tylney-smeeth ibid. V Vacation what 72. A particular Vacation appointed by the Longobards 84. Valvasini 58. Valvasor 16 17 58. Vassalagium what 34. Vassalli 3 9. Venatio clamosa quieta aut modesta 109 114. Villanus what it signifies in Latin 14. W De Waceio Radulphus Princeps militiae Normannorum 165. Wallington 14â— Walpole 138. Walsham 153. Walsingham 149. Walsoke 138. Walter Arch-deacon of Oxenford 100. Walter Bishop of Durham bought Northumberland 116. Sate himself in the County Court ibid. By whom kill'd ibid. Walter Marshal of England the fourth son of William the King's Marshal 166. When he dy'd ibid. Walton 138. Walworth Sir Will Lord Mayor of London 168. Wapentakes 50. Watton 161. Waxham 153. Wardship no profits arising from it in the Saxons time 25. The original of its name ibid. Wardship in Scotland 27. Warenna Guil. de 19â— Were or Weregild what 15. West-acre 141. West Saxon-Law 49. Wic what it signifies in the Saxon tongue 156. Wichingham 151. Wigenhall 138. William the Conquerour transfer'd his Country customs into Ireland 5. Makes Feuds and Tenures hereditary there ibid. Priviledges granted by him to the Cinque-Ports 26. Gave certain lands to Baldwin Abbot of St. Edmund s-bury 45. His Laws made by the consent of the Bishops and Barons 61. His Constitution concerning Festivals and Law days 8â— Made a Law that no man should be put to death for any crime 82. Laws of Scotland Reg. Maj. 131 Laws Saxon in the King's Library MS. 17. Lind. Cland. Despons 80. Littleton Justice 6. His Tenures 35. Longobard-laws 89 131. Loyseau de Seigneurs 13 92. Ludovici Pii Exauctoratio 185. Vita 185. Lyndwood 109. M Major Joh. 27. An ancient Manuscript of Saxon Laws in the King's Library 17. Marculphus 9 128 129. Matthew Paris 11 62 71 116 118 12â— 138 151 152 166 167. Merula 5. N Neapolitan and Sicilian Constitutions 10 80. Norman Customs 30 80. Novella of Constantine Porphyrogenneta 36. O Osbertus 99. Oswald Bishop of Worcester 4 P Pancirollus 148 154 Pasquier 13. Paulus Diaconus 84. Pausanias 3. Philo Judaeus 75. Placita Coronae 60. de Platea Joh. 64. Plinius 138. Polydorus Virgilius 62 71. Prosper 93. R Radevicus de Gest Frid. I. 82. Radulphus Niger 90 117. Ramsey-Abbey MS 29 53 128 139 140 146. Rastal 86. S Selden 26. Sigonius 127. Skeneus 28. Smith Sir Tho. 6 75. Soto 109 112. Spelman's Glossary 1 3 12 15 Codex legum 96. Spelmans Concilia Britannica 8 17 18 23. Sprott a Monk of Canterbury 45. Statius 84. Stow. 147 154 168 186 213. Suarez 109. Suecus Gravius 3. Synod of Eanham 78. T Tabienus 90 91. Tacitus 3 4 15 35 51 59 74 127 149. V Vegetius 147. Vincent 168 169. Virgilius 93. W Walsingham Hypodigma Neustriae 82 92 151 167. Waraeus 140. K. William I's Laws 82 84. William of Malmsbury 119 145. Y York Herald 168 169. FINIS 1 Pag. 188. 2 Pag. 208. 3 Pag. 212. Durham-house Birth 1 Praef. ad Gloss Edit 1687 by J. A. Education 2 Praef. ad Gloss 3 Letter against Impropriations printed among the Treatises publisht by Jer. Stephens 1647. 4tâ— Sent to Lincoln's Inn. Marriage 1 2 Jac. 1 Employments 2 Hacket Life of Bishop Williams Part 2. pag 93. Knighted Came to live in London 1 Pref. to the Gloss Study of our ancient Historians 1 Law-Terms Chap. 8 in MS. Oxon Glossary 1 Praef. ad Gloss 2 Brady Answ to Mr. Petit pag. 229. The second part of the Glossary 1 Mr. Petit's Jani Anglorum facies Nova p. 219. 265. And the answer to it by Dr. Brady pag. 229. 1 Brady pag. 229. Councils 1 Praef. ad Concil Vol. I. 〈…〉 Councils 1 〈…〉 Council The second Volume of the Councils 1 Life of Mr. Somner 2 Mr. Nicolsons English Library part 2. pag. 43. 1 〈…〉 Asâ—mol Oxon 〈…〉 1 Pag â—24 Larger Work of Tithes The History and Fate of Sacriledge MS 2 Ath. Oxon p. 230. Part 2. Codex Legum Veterum MS. De Sepultura Aspilogia Book of Abbreviations 〈…〉 1 Pref. to that Book 〈…〉 〈…〉 1 Dedicat. ad Tho. Adamsium ante Bedam Acquaintance Children 3 Praef. ad Concil T. 1. 2 Camd. Ep. 226. 〈◊〉 Spelman Clement Spelman 1 Wood At h Oxon. p. 511. part 2. 〈…〉 〈…〉 dâ—finitâ—â—n of a 〈◊〉 Th◠〈…〉 1 Cujac in praefat ad lib. 1. feud p. 10. seq 2 Cujac ad lib. 3. feud tit 1. p. 178. Instances of Feuds among the 〈◊〉 3 1 Chron. â—hap 23 2â— 4 Ibid. Cap. 23. 5 Cap. 27. 1 Num. 21. 14. 1 Kings 13. 17. 2 Lib. de Phocid p. 118. Among the Gauls 3 Bell. Gall. lib. 6. p. 118. Ambactâ— 4 Bell. Gall. p. 184. 5 Ibid. p. 124. 6 Genes 14. 14. 7 Germ. Mor. p. 129. 8 Cujac ad Constit Lotharii feud lib. 5. p. 284. 9 Bell. Gall. lib. 6. p. 120. 10 Germ. Mor. 11 Bell. Gall. p. 121. 12 In Epist ad Bon. Vulcan Vid. Bellagines in Glossario nostro 1 Cujac in prâ—â— aâ— lib. p. 1. 2 Cujac ad liâ— 1. feud p. 21. 3 Vid infra Chap. â—6 Tenuâ—eâ—â—â—r Liâ—e How Feuds became hereditary Feuds hereditary in England 1 Comment in consuet Fâ—â—d Cap. 1. 2 Rex Mediolan lib. 3. 3 Gunt p. 409. 1 Aâ— lib. 1. Feud Tit. 1. p. 21. The great growth of 〈◊〉 â—s to title 2 Cujac Feud lib. 3. p. 180. 3 Ibid. 4 Lib. 1. p. 7. 5 Feud lib. 1. p. 5. 6 〈◊〉 3. â— 5. 〈◊〉 437. No proper Feuds before the Conquest What Tenures were in use among the Saxons Tenures when first used Translation of Saxon Charters No Feodal words among the Saxons The charter of Beorredus examined 1 Hist Lib. 2. c. 5. Saxon Charters in the Saxon tonguâ— 2 Concil Brit. p. 378. 1 In praesatione illius Libri Feudum not in use in Beorredus's days 2 Chap. 20. 21. 3 Ad Marculâ— p. 470. 4 P. 550. 5 Prooem ad lib. Feud p. 7. Feuda and Beneficia 1 Lib. 1. Tit. 65. c. 2 Lib. 3. Tit. 21. c. 3 Norm Reform p. 4. 4 In Gul. Rege No Tenures in Capite among the Saxons Tenure in Capite of two sorts 1 Lib. Ramsey f. 42. d. §. 279. 2 Pap. 157. Distinction of persons among the Saxons Lands among the Saxons Bocland 1 Vid. Gloss in Verb. Foresta Folcland Inland 2 Ing. Sax. p. 864. Outland 3 Praef. ad libr. Fend p. 12. 4 Itinerar Cant. p. 495. Earl no title of dignity anciently 1 Asser de gest Alfredi p. 21. 2 Ibid. No Earldoms hereditary Earldoms in France 3 Loyseau â—e Seignier c. 5. p. 106. lin â—lt Ceorls 1 Cap. 70. Ceorls 2 P. 116. 3 De Mor. Germ. p. 132. 4 Cap. 65. 5 Fol. 55. C. 6 Cap. de Weregild 7 Ll. Aethelst ibid. Earls capable of Knight's-Fees Thane what Thâ— quality of Thanes 1 Hist Seâ—â— Lib. 6. 2 Itâ—n Cant. p. 502. 1 Cap. de dignitate hominum f. 163.
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
to the Grant whether it be a part of the Grant and the modus concessionis or whether it be a distinct thing and Aliud from the Grant For so the Printed Case represents their Opinion if the Reservation of the Tenure and the Grant of the Land be aliud aliud two distinct things in the consideration of the whole Grant made and the authority given by the said Commission for the making thereof then the Patent may be void as to the Tenure and yet good for the Grant of the Land But if the Reservation of the Tenure be incident unto the authority and included within it and the Reservation of the Tenure and the Grant of the Land make up but one entire Grant so that the one is a part of the other and the Reservation of the Tenure be Modus concessionis then the granting of the Land reserving a diverse or contrary Tenure to that which their nude authority did warrant them to reserve is a doing of Idem alio modo and so the whole Act is void They who pleaded for the validity of the Letters Patents as to the Lands and their being void only as to the Tenure urg'd among other arguments That Tenures in Capite were brought into England by the Conquest but Grants were by the Common-Law and therefore Grants being more ancient than Tenures the Tenure must of necessity be aliud from the thing granted And to prove that this Tenure came in with the Conqueror they cited Mr. Selden in his Spicileg ad Eadmerum p. 194. where he hath that out of Bracton de Acquir Rerum Dominio b. 2. Forinsecum servitium dicitur Regale servitium quia spectat ad Dominum Regem non ad alium secundum quod in Conquestu fuit adinventum But this Argument and the Authority were both over-ruld and it was affirm'd that Tenures were not brought into England by the Conqueror but were common among the Saxons Their Answer to Mr. Selden's Opinion with the Reasons upon which they grounded their position I will transcribe at large from the Printed Case the Book being very scarce and this the only Point wherein Sir Henry Spelman is concern'd It was answered that Mr. Selden in that place does barely recite the words of Bracton not delivering any Opinion of his own For in that Book cited pag. 170. and in his Titles of Honour the last Edition p. 612. We find that he was of another Opinion and that this Tenure was in use in England in the times of the Saxons What were those Thani Majores or Thani Regis among the Saxons but the Kings immediate Tenants of Lands which they held by personal service as of the Kings person by Grand Serjeanty or Knights-service in Capite The Land so held was in those times called Thain-land as Land holden in Socage was called Reveland so frequently in Dooms-day Haec terra fuit terra Regis Edwardi Thainland sed postea conversa est in Reveland Cokes Instit Sect. 117. After some years that followed the coming of the Normans the title of Thane grew out of use and that of Baron and Barony succeeded for Thane and Thain-land Whereby we may understand the true and original Reason of that which we have in the Lord Cromwels Case 2. Coke 81. That every Barony of ancient time was held by Grand Serjeanty by that Tenure were the Thain-lands held in the time of the Saxons and those Thain-lands were the same that were after called Baronies 'T is true the Possessions of Bishops and Abbots were first made subject to Knights-service in Capite by William the Conquerour in the fourth year of his Reign for their Lands were held in the times of the Saxons in pura perpetua Eleemosyna free ab omni servitio saeculari But he then turned their Possessions into Baronies and so made them Barons of the Kingdom by Tenure so that as to them this Tenure and Service may be said to be in Conquestu adinventum But the Thain-lands were held by that Tenure before As the Kings Thane was a Tenant in Capite so the Thanus mediocris or middle Thane was only a Tenant by Knights-service that either held of a mean Lord and not immediately of the King or at the least of the King as of an Honour or Mannour and not in Capite What was that Trinoda Necessitas which so often occurs in the Grant of the Saxon Kings under this Form Exceptisistis tribus Expeditione Arcis pontis exstructione See it in a Charter of King Etbeldred in the Preface to Cokes 6. Report c. But that which was after expressed by Salvo forinseco Bracton lib. 2. cap. 26. 35. 12. Edw. 1. Gard 152. 26. Ass 66. Selden Analect Anglobrit 78. And therefore it was said that Sir Henry Spelman was mistaken who in his Glossary verbo feudum refers the original of Feuds in England to the Norman Conquest It is most manifest that Capite Tenures Tenures by Knights-service Tenures in Socage Frank-almoigne c. were frequent in the times of the Saxons And if we will believe what is cited out of an old French Customary in a MS. Treatise of the Antiquity of Tenures in England which is in many mens hands all those Tenures were in use long before the Saxons even in the times of the Britains there it is said The first British King divided Britain into four parts And gave one part to the Arch-Flamines to pray for him and his posterity A second part he gave to his Earls and Nobility to do him Knights-service A third he divided among Husbandmen to hold of him in Socage The fourth part he gave to Mechanical persons to hold in Burgage But that Testimony was wav'd there being little certainty or truth in the British Story before the times of Caesar Neither would they make use of that which we are taught by William Roville of Alenzon in his Preface to the Grand Customier of Normandy that all those Customs among which these Tenures are were first brought into Normandy out of England by Edward the Confessor Besides that which hath been said we find Feuds both the name and thing in the Laws of those times among the Laws of Edward the Confessor cap. 35. where it is thus provided Debent enim universi Liberi homines secundum feodum suum secundum tenementa sua Arma habere illa semper prompta conservare ad tuitionem Regni servitium dominorum suorum c. Lambard Archaionom 135. This Law was after confirmed by William the Conqueror vid. Cokes Instit Sect. 103. As these Tenures were common in those times so were all the fruits of them Homage Fealty Escuage Reliefs Wardships For Releifs we have full testimony in the Reliefs of their Earls and Thanes for which see the Laws of King Canutus cap. 66 69. The Laws of Edward the Confessor cap. de Heterochiis And what out of the Book of Dooms-day Coke hath in his Instit Sect.
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
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
also more particular Hora nona is here as in all Authors of that time intended for three of the clock in the after-noon being the ninth hour of the artificial day wherein the Saxons as other parts of Europe and our Ancestours of much later time followed the Judaical computation perhaps till the invention and use of Clocks gave a just occasion to alter it for that they could not daily vary for the unequal hours CHAP. X. The Constitution of William the Conquerour THis Constitution of Edward the Confessour was amongst his other Laws confirm'd by William the Coquerour as not only Hoveden and those ancient Authors testifie but by the Decree of the Conquerour himself in these words Hoc quoque praecipio ut omnes habeant teneant Leges Edwardi in omnibus rebus adauctis his quae constituimus ad utilitatem Anglorum And in those Auctions nothing is added alter'd or spoken concerning any part of that Constitution Neither is it like that the Conquerour did much innovate the course of our Terms or Law-days seeing he held them in his own Dutchy of Normandy not far differing from the same manner having received the Customs of that his Country from this of ours by the hand of Edward the Confessour as in the beginning of their old Custumary themselves do acknowledge The words touching their Law-days or Tryals be these under the Title De temporibus quibus leges non debent fieri Notandum autem est quod quaedam sunt tempora in quibus leges non debent fieri nec simplices nec apertae viz. omnia tempora in quibus matrimonia non possunt celebrari Ecclesia autem legibus apparentibus omnes dies Festivos prohibet defendit viz. ab hora nona die Jovis usque ad ortum Solis die Lunae sequenti omnes dies solennes novem lectionum solennium jejuniorum dedicationis Ecclesiae in qua duellum est deducendum This Law doth generally inhibit all Judicial proceedings during the times wherein Marriage is forbidden and particularly all tryals by Battail which the French and our Glanvil call Leges apparentes aliàs apparibiles vulgarly Loix Apparisans during the other times therein mention'd And it is to be noted that the Emperour Frederick the Second in his Neapolitan Constitutions includeth the tryals by Ordeal under Leges paribiles But touching the time wherein Marriage is forbidden it agreed at that day with the Vacations from Law-business prescrib'd by Edward the Confessour the Church not thinking it reason that men abstaining from litigation should give themselves to lust and to feasting and dancing things incident to Marriage In which respect it also required that man and wife as near as they could should at these times forbear the pleasure of their bed and give themselves to devotion and piety For tho' covetous persons have since abused that godly Institution to their profit yet the Fathers that were Authors of it in Ilerdensi Concilio about 500. years after Christ aim'd at nothing but meerly sanctity The times of Marriage prohibited according to the Constitution of the Church were these A prima Dominica Adventus usque ad Octavas Epiphaniae exclusive à Dominica Septuagesimae usque ad primam Dominicam post Pascha inclusive à prima die Rogationum usque ad septimum diem festi Pentecostes inclusive The Law-Vacation according to the prescription of Edward the Confessour is ab Ascensione Domini usque ad octabis Pentecostes But here the Wedding-vacation is three days before it viz. à prima die Rogationum which is according to the Constitution De Feriis ca. Capellanus So that the Term-times and Vacations of the English and Normans were anciently all one and our Ecclesiastical Courts hold it so to this day Of the Dies novem Lectionum before mention'd we shall speak anon CHAP. XI What done by William Rufus Henry I. King Stephen and Henry II. AS for William Rufus we read that he pulled many lands from the Church but not that he abridged the Vacation times assigned to it Henry I. upon view of former Constitutions composed this Law under the Title De observatione temporis Leges faciendi viz. ab Adventu Domini usque ad Octabis Epiphaniae à Septuagesima usque ad 15. dies post Pascham Festis diebus quatuor Temporum diebus Quadragesimalibus aliis legitimis Jejuniis in diebus Veneris vigiliis Sanctorum Apostolorum non est tempus leges faciendi idem vel jusjurandum nisi primo fidelitate domini vel concordia vel bellum vel ferri vel aquae vel leges exactionis tractari sed sit in omnibus vera pax beata charitas ad honorem omnipotentis Dei c. The Copies of these Laws is much corrupted and it appeareth by Florence Wigorn's Continuer that the Londoners refused them and put Maud the Empress to an ignominious flight when she pressed the observation of them But in this particular branch there is nothing not agreeable to some former Constitution The word Bellum here signifieth Combats which among our Saxons are not spoken of and by those of Ferri vel aquae are meant Ordeal King Stephen by his Charter recited at Malmesbury confirmed and established by a Generality Bonas leges antiquas justas consuetudines Henry the II. expresly ratified the Laws of Edward the Confessour and William the Conquerour as Hoveden telleth us saying That he did it by the advice of Ranulph Glanvil then newly made Chief Justice of England which seemeth to be true for that Glanvil doth accordingly make some of his Writs returnable in Octabis or Clauso Paschae where the Laws of Edward the Confessour appoint the end of Lent Vacation And Gervasius Tilburiensis also mentioneth the same return Yet the MSS. Laws of Henry II. which remain in the Red-book of the Exchequer following the Synod of Eanham extendeth Lent Vacation à Septuagesima usque 15. dies post Pascha and layeth out the whole frame of the year in this manner under the Rubrick De observatione temporis leges faciendi viz. Ab Adventu Domini usque ad Octabis Epiphaniae a Septuagesima usque ad quindecim dies post Pascha festis diebus quatuor temporum diebus Quadragesimalibus aliis legitimis jejuniis in diebus Veneris Vigiliis singulorum Apostolorum non est tempus leges faciendi idem vel jusjurandum nisi primo fidelitate Domini vel concordia vel bellum vel ferri vel aquae vel legis examinationis tractari Sed sit in omnibus vera pax beata charitas ad honorem Omnipotentis cujus sapientia conditi sumus nativitate provecti morte redempti consolatione securi qui debitor est persolvat ante vel induciet donec dies isti transeant gaudiis honestis voluptatibus instituti Et si quis maleficium
health is there in letting off a Cross-bow wherein neither Head Hand nor Foot no not the nimblest member of the Body the Eye stirreth all that while Fifthly the Canon hath St saepius detentus fuerit if he make a Life or Occupation of it which his Lordship did not Burchard saith detectus and with more reason and I suppose his Lordship useth it very temperately yet the Apologist in his Fifth Section insinuateth that his Lordship doth it often Sixthly whereas he saith that the Canon speaketh against Clamosa venatio not quieta or modesta I find no such word or distinction in the Canon yet is there no doubt that if the Deer be not kill'd out of hand but in recovering him there must be both Clamor and Venatio Thus he counteth the mouth of the Canon to be stopt Yet because it is good to make sure work with so dangerous an object now he setteth Law upon Law the Common against the Canon or at least the Statute which indeed hath crack'd a great sort of Canons That by the Statute of Henry VIII 35. ca. 16. No Canon is in force in England which was not in use or is contrary or derogatory to the Laws or Statutes of this Realm or to the Prerogatives of the Royal Crown Of which sort he saith this is one and gives his reasons for in Charta de Foresta Arch-bishops and Bishops by name have liberty to Hunt and 13. Ric. II. ca. 13. A Clergy-man who hath 10l. by the year may keep Grey-hounds to Hunt The name of Charta de Foresta and also of Hunting is Clero lachrimabile nomen For the first breach that ever was made into the freedom of Clergy-men and which gave passage to all that followed rose from the occasion of Clergy-mens Hunting in Forests which Henry II. greatly discontented with never rested till by assent of the Pope's Legate Hugo Petro-leonis he obtained a Law in the twenty first year of his reign An. Dom. 1157. To convent them therefore before secular Judges and there to punish them But to our purpose There is no contradiction as I take it between the Canon de Clerico Venatore and Charta or Statutum de Foresta The Canon doth say They shall not Hunt and the Statute doth not say they shall The words of the Statute ca. 17. are thus An Arch-bishop Bishop Earl or Baron coming to us upon our command and passing through our Forest Liccat ei capere unam bestiam vel duas per visum Forestarii si praesens fuerit sin autem faciat cornare ne videatur furtum facere Here is no word of Hunting but that they may take a Deer and this they will say cannot be but either with Dogs or Engine and so consequently by Hunting But the very words of Charta de Foresta seem to shew that it was not meant the Bishop should be an Huntsman for that it admitteth him not to have so much skill in Hunting as to wind an Horn tho' that by no Law or Canon be forbidden to him And therefore saith not Corniat ipse but Faciat corniare let him cause an Horn to be blown c. I conceive the meaning to be that the Bishops and Barons shall each of them take as they may the Barons by Hunting if they will in their own Persons the Bishops as they may by the hands of their Officers and Servants It is a common phrase in all old Charters that the Bishops shall have Sac and Soc Toll and Team c. i. e. cognisance of plea suit of Court toll and such other customs shall we intend that he must take these in his own Person No it was not Henry the third's meaning when he granted the Charter of the Forest to break the Laws of the Church for at the same time in Magna Charta ca. 1. he granteth that the Church shall have Omnia jura sua integra libertates suas illaesas which could not possibly be if by his Charter he changed the Canons of the Church especially in matters of Doctrine and Conscience as when the Church teacheth that a Clerk may not be a Huntsman for him to say that he shall be Doubtless if he would the Clergy would not then accept it In the person of a Bishop there be three distinct Faculties his Spiritual Function wherein he is a Bishop his Legal Ability wherein he is a Lay-man and hath liberty to contract c. and his Temporal Dignity wherein he is a Baron and Peer of the Realm and participateth their priviledges I could put cases wherein every of these may be seen severed from the other but I should then wander from my matter Only I present them thus Anatomy'd that it may appear what portion the Church had in them what the Common-wealth and what the King that so it may also the better appear how the Laws both of the Church and Kingdom are to be applyed unto them respectively When therefore the King granted Temporal lands unto them tho' they took them as Lay-Barons and in their Temporal Capacity yet might they not otherwise use them than might stand with their Spiritual Function no more than when he granted Ecclesiastical possessions to a Lay-man the Grantee might otherwise use them than as a Lay-man For example it was a common thing in old time that the King granted Churches to Lay-men by the name of Ecclesiam de Dale and Ecclesiam de Sale yet it was never intended that the Grantee tho' he had the Churches to order and dispose should contrary to his Vocation meddle with the Divine Service but present his Clerk only So in like manner when the King granted to Clergy-men Chaces Parks and Warrens it was not intended that contrary to the rules of their Profession and Laws of the Church they should or might become Hunters and Foresters My long stay upon this point is a preparative to an answer to the next which is the Statute of Ric. II. being in the negative That no Priest nor other Clerk not advanced to 10l. a year shall have or keep any Greyhound nor other Dog to Hunt nor they shall not use Ferrets Hayes Nets Hare-pipes nor Cords nor other Engines for to take and destroy Deer Hares nor Conies c. upon pain of one years imprisonment The Statute I say is in the Negative and saith that none under 10l. a year shall keep but saith not in the Affirmative That it shall be lawful for them that have 10l. a year to keep c. I should therefore think that this Statute doth not discharge a Priest having 10l. a year and using Hunting against the Canon-Law no more than the Statute of Vsury forbidding a Man to take above 10l. loan for an 100 l giveth him liberty to take that 10l. or doth discharge him against the Canons of Vsury Touching his inference that Linwood speaketh not one word against Hunting simply by Clergy-men but against their using it in places restrained it is true for the Text of