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
in Shoe-lane by a Lease from the Bishop of that See temp Edw. VI. yeilding some Rose or other small or not valuable Rent 19. The Bishop of LINCOLN'S Place was Southampton-house in Holborn convey'd temp Edw. VI. to the Lord Writoheseley then Lord Chancellor in fee for which the Bishop hath no other house in or near London as is thought 20. The Bishop of CHICHESTERS Place or Palace as Matthew Paris in his Chronicle calleth it reciting the story of the Lord Arch-bishop of Canterbury visiting St. Bartholomews did at that time lye in that house which was in Chancery-lane where Sir Richard Read sometime a Master of the Chancery and Mr. Atkinson the Counsellor at Law and others dwelt and dwell in and is said to be in Lease from the Bishop's Predecessors for divers years What the Rents reserv'd yearly be the Lease will shew the same 21. The Bishop of St. ASAPH never had Place at or near London that I can learn of neither in the valuation of the See where all his Possession and Jurisdictions be valu'd in the First-fruit-office is there mention of any such Place neither doth the now Bishop of that See know the same 22. The Bishop of the ISLE OF MAN call'd Sodorensis Episcopus altho' the same be an ancient Bishoprick yet was he never Lord of the Parliament of England having no Chapter or other Clergy but only an Archdeacon and all the Incumbents of the several Parishes of that Isle And before the said Statute of 33. Hen. VIII was neither a Suffragan of the Province of Were wont in former times to ride on Mares or Mules 119. Prohibited to take cognizance of Wills 129. Blackney Harbour 151. Blicking 151. The birth place of Q. Anna Bullen ibid. Bocland what 12. Not subject to Homage 35. Bond-men anciently not valu'd or rated 15. Reputed only as part of their Master's substance 11 15. Boors who 14. Bouthorpe 157. Bramsil 108 109. Brancaster 147 148. Breakspear Nich. converted Norway 139. Made Cardinal and Pope ibid. Breclys 161. Brennus a Britain invades Greece 3. His attendants ibid. Brictrick a Saxon Thane 22. Britains none of 'em remaining after Cadwallador's departure 100. Their Laws alter'd by the Romans 101. Bronholm 152. Brotherton Tho. Earl of Norfolk and Earl Marshal of England 167. When he dy'd 168. Buckenham 158. Burg-Castle 155. Burghesses of old not call'd to consult of State-matters 64 65. Burghbote and Brugbote 17 22 40. Burnham in Norfolk 149. Burnham-East in Com. Bucks 23. By what it signifies 3. 154. By-laws 3 154. C Cadwallader Prince of the Britains fled into Armorica 100. Calthorp 151. King Canutus how he publish'd his Laws 61. His Constitution touching Festivals 79. Capet Hugh usurpt the Kingdom of France 5 He grants his Nobility a perpetual enjoyment of their Feuds and Honours ibid. 14. Capitales plagii 52. Capitanei Regis regni 58. Caput feodi aut Capitaneus feodi 11. Carbrook 161. Carolus Calvus Emperour and King of France his Synodical Edict 54 55. Carolus Magnus or Charlemaigne divided his Territories between his three Sons 128. Castle-acre 141. Castle-rising in Norfolk the Parson has the Probate of Wills in that Town 130. Caston 151. Castor 155 156. Ceorls who 12. Of two sorts 14. The chiefest part of their profits redounded to their Lords ibid. Their service no bondage ibid. Their valuation and priviledges ibid. Not capable of a Knights Fee ibid. Champain in France 128. Chancery-Court 94. Charta de Foresta 109 114. Charter the first by whom made and where kept 8. Saxon Charters usually writ in that Language ibid. Charters of Thane-lands granted by several Kings 19 20. Chichley Henr. Arch-bishop of Canterbury canoniz'd St. George's day 93. The occasion of that Constitution ibid. Chindavintus King of the western Goths his Law concerning Wills 130. Cingulum quo sensu accipiendum 185. Cinque-Ports priviledges granted to them by King Edward the Confessour c. 26. Clacklose-Hundred 139. Clergy-men forbidden to use hunting 109 112 113. seq When they took upon them to prove Wills 129. Prohibited by Justinian to meddle with those matters ibid. Cley harbour 151. De Clifford Rob. Marshal of England 167. K. Canute's Charter of donation to the Thane Orc. 20. Coin of England in Q. Elisabeth's time 203 c. Colloquia 65. Comites who and why so call'd 3. Commendati 35. Congham 145. Conradus Salicus made a Constitution touching Feuds 4 5. Consecration a strange one of Eadmer a Monk of Canterbury 119. Consilium regni 60. Controversies among the ancient Britains by whom judg'd 74. Conveyance of lands how made by the Saxons 8. Cosshering what 60. Cossey 157. Counties in England 5. County-Courts how often kept 54. Were proclaim'd a sennight beforehand ib. Earl's County and Bishop's Diocess had but one limit 130 131. Ecclesiastical and Secular causes there decided 131. Court-Baron 4. It s Original 51. Court-Leet 51. Sometimes granted to the Lords of Mannours ibid. Court-Christian or Ecclesiastical when it sprung up 131 132. High Courts of Justice why they sit not in the Afternoons 89 90. Why they sit not all some days 90 91. Why they sit on the Rogation days ibid. Why on some Festivals and not on others 91 The Admiralty-Court why always open 94. Chancery-Court said to be always open ib. Cowshil 153. Creak 149. Cromer 152. Crostwick 153. Crowner's Office not before the Conquest 27. D Dane-blood 149. Dane-law 45. Danes not capable of devising lands by will 22 David I. King of Scotland and Earl of Huntingdon 11 131. Dean his Office and Functions 50. The priviledges of a Bishop's Dean ibid. Deerham West 140. Defensor Plebis 129. Degradatio Militis 185. Deira a Province 13. Demains or Demesne what 12. Ancient Demesnes had not any lands by Knight-service 44 57. D'Evreux Robert Earl of Essex Viscount Bourchier c. 171. Sent into Spain with an army ibid. Storm'd Cadiz ibid. Created Marshal of England ibid. Made Lord Deputy of Ireland ibid. When beheaded ibid. Dies juridici 72 73. Dies feriales 72. Dies pacis Ecclesiae ibid. 79. 82. Dies pacis Regis ibib 82. Dies novem Lectionum 91. Dies feriati repentini 93. Dower why judg'd to belong to the Ecclesiastical Court 132. Downham 140. Druides who 74. The sole Judges of controversies among the old Britains 74. Suppos'd to have us'd the Greek tongue 103 Had no knowledge of the Latin ibid. Dudley John Duke of Northumberland and Earl Marshal of England 170. E Eadmere a Monk of Canterbury made Arch-bishop of St. Andrews in Scotland 119. King Eadwigus's Charter of Thane-lands granted to Aelswine 19. Earl Marshals of England 169 170 171. Earl of a County see Alderman Earldoms not hereditary in ancient times 13. Earldoms in France ibid. 14. Earls among the Saxons 13 14. Earl no title of dignity anciently 13. Their Office depended on the King's pleasure ibid. An Earls Heriot 31. Easter-Term how limited anciently 83. Easter-week when exempted from Law business 76. Ebsam in
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
For which purpose Conradus Salicus a French Emperour but of German descent going to Rome about fourty five years before the time of our King Edgar viz. sub An. Dom. 915. to fetch his Crown from Pope John X. made a Constitution upon the petition of his Souldiers That filii or aviatici the sons or if no Sons were living the Nephews or Grandsons as they call them of some of them should succeed in the Feud of their Father See the Constitution in the beginning of the fifth book of Feuds But Gerardus noteth that this law settled not the Feud upon the eldest Son or any other Son of the Feudatarie particularly but left it in the Lord's election to please himself with which of them he would After this Feuds were continued in divers places by several increments to the third fourth fifth sixth and seventh generation and sometime for want of lineal issue collaterally to the brother as Gerardus testifieth but whether by some positive law or by the munificence of the Lords he doth not tell us nor when or by whom they were made perpetual and hereditary tho' he confesseth that at last they grew to be extended in infinitum and then they began to be settled upon the eldest Son who formerly had no preheminence above a younger brother But while they stood sometimes produced in this manner by the indulgence of Princes to the third fourth or fifth generation c. some men of learning have concluded them to be hereditary as tho' there were no medium between a limitation how far so ever extended and infinitum To pass by that let us now go on in examination when and how Feuds became Hereditary Some suggest a shew of such a matter under the two Othones German Emperours who succeeded one the other about the year 973. But to rest upon the common and received opinion which we shall hereafter more at large declare the truth is that when Hugh Capet usurped the Kingdom of France againgst the Carolinges he to fortifie himself and to draw all the Nobility of France to support his Faction about the year 987. granted to them in the year 988. that whereas till then they enjoyed their Feuds and Honors but for life or at pleasure of their Princes they should from thenceforth for ever hold them to them and their heirs in Feudal manner by the Ceremony of Homage and oath of Fealty And that he would accordingly maintain them therein as they supported him and his heirs in the Crown of France which they joyfully accepted This was a fair direction for William of Normandy whom we call the Conquerour how to secure himself of this his new acquired Kingdom of England and he pretermitted not to take the advantage of it For with as great diligence as providence he presently transfer'd his Country-customs into England as the Black book of the Chequer witnesseth and amongst them as after shall be made perspicuous this new French custom of making Feuds hereditary not regarding the former use of our Saxon Ancestors who like all other Nations save the French continued till that time their Feuds and Tenures either arbitrary or in some definite limitation according to the ancient manner of the Germans receiv'd generally throughout Europe For by the multitude of their Colonies and transmigrations into all the chiefest parts thereof they carried with them such Feodal rights as were then in use amongst them and planting those rites and customs in those several Countries where they settled themselves did by that means make all those several Countries to hold a general conformitie in their Feuds and Military customs So by the Longobards they were carried into Italy by the Saliques into the Eastern parts of France by the Franks into the West part thereof by the Saxons into this our Britain by their neighbours the Western Goths who communicated with the Germans in manners laws and customs into Spain and by the Eastern Goths into Greece it self and the Eastern parts of Europe c. These I say carried with them into the parts of Europe where they settled such ancient Feudal customs as at the time of their transmigration were in use among them But the more prevalent and more generally receiv'd customs were those that were in use or taken up in the time of Conradus the Emperour and when Feuds became hereditary for on them especially is the Feudal Law grounded and composed tho' enlarg'd oftentimes by Constitutions of the Emperours and spread abroad into divers Nations by their example countenance or authority Wherein the Court of Milan was chiefly followed in rebus judicatis as appeareth by Duarenus and Merula but reserving unto every Nation their peculiar rights and customs For it was generally received into every Kingdom and then conceived to be the most absolute law for supporting the Royal estate preserving union confirming peace and suppressing robberies incendiaries and rebellions I conclude with Cujacius who upon the above-cited passages of Gerardus Niger saith Quam aliam Feudorum originem quaerimus His veluti incrementis paulatim feuda constituta sunt quae post Conradum usus recepit ut transirent ad liberos mares in infinitum c. The Military and Lay-Feuds being thus advanced from an arbitrary condition to become perpetual and hereditary did now in ordinary account leave their former name of Beneficia which were only temporary for years or life unto the Livings of the Clergy and retained to themselves the proper name of Feuds whereby they were produced to be perpetual and hereditary Cujacius therefore speaking of them both saith Feudum differt a beneficio quod hoc temporaneum fuit illud perpetuum And treating in another place of these beneficiarii and temporarii possessores he saith further Iisdem postea câ—pit concedi feudum in perpetuum quod est verum proprium Feudum Concluding in a third place that Propria Feudi natura haec est ut sit perpetua So that Cassineus in the Feuds of Burgundy saith that Omne Feudum quocunque modo acquisitum fit haereditarium cum successione sit redactum ad instar Allodialium That all Feuds by what means soever they be acquired are made hereditary in so much as by the continual succession of the children into the Feuds of their Fathers the Feuds are now brought to be like Allodial or patrimonial inheritances Thus Feudum which at first was but a tottering possession ad voluntatem Domini growing at length to be an irrevocable estate descending by many successions from son to son became at last to be an absolute inheritance and thereupon the words themselves Feudum and Haereditas in common use of speech Quem penes arbitrium est jus norma loquendi to be voces convertibiles and by a fair metonymia each to signifie other For as Horace further saith Verborum vetus interit aetas Et juvenum ritu florent modo nata vigentque Aptly
had their original from Princes of Norman lineage do ..... the Conquest here in England make mention of tenens tenere tenementum and tenere de Rege in Capite but whether the Normans carried these terms into Italy when they Conquer'd Naples about the year 1031. or brought them from thence into Normandy I cannot determine Certain it is that from the Normans they came to us in England for being not met with before in any authentick Author we presently after the Conquest begin to hear of them even about the third or fourth year of the Conqueror's reign as appeareth by his Charter of Emendationes Legum in the Red book of the Exchequer f. 162. b. and in Lambard's Archaionomia CHAP. IV. Of Tenures in Capite more particularly TOuching Tenures therefore in Capite I think I may boldly say that here were none in England in the Saxons time after the manner now in use among us First For that their Feodal Lands as we have shewed were not descendible before the Conquest For tho' there were hlaâ—ord and ðane amongst the Saxons that is Lord and Thane or Servitour whom beyond the Seas they called Seigneur Vassall alias Vassallum Dominum Clientem while their feuds were arbitrable or but for years or life yet grew not the words of tenure into use till that Feuds became descendable to posterities and thereby obliged the whole succession of heirs to depend and hold upon their Capital Lords by the services imposed at the creation of that Feud Secondly The word in Capite is like a Relative in Logick which being a supreme degree of it self implieth some other degrees to be under it as Tenant in medio or Tenant in imo or both viz. Tenant in Capite Tenant in menalty and Tenant Paravale or at least Tenant in Capite and Tenant Paravale which inferiour Tenants could not be in the Saxons time for that the granting of Feuds in perpetuity out of which the under-Tenancies must be deduced was as I have said not yet in use Thirdly to hold in Capite is of two sorts The one general which is of the King as Caput regni caput generalissimum omnium Feodorum the fountain whence all feuds and tenures have their main original The other special or subaltern which is of a particular subject as Caput feudi or terrae illius so called because he was the first that created and granted that feud or land in that manner of tenure wherein it standeth and is therefore at this day so to be understood by the ordinary words in our Deeds of tenendum de Capitalibus Dominis feodi illius c. signifying that the lands so granted since the statute of Quia Emptores terrarum must now be holden mediately or immediately of him or his heirs or assigns that was Caput Feodi the first that created or granted that Feud in that tenure who thereupon was called Capitalis Dominus Caput terrae illius among the Feudists Capitanus feudi illius And the Grantee and his heirs were said to be Tenants in Capite because they held immediately of him that first granted that feud or land in that manner Hereupon David I. King of Scots and Earl of Huntingdon here in England was in right of his Earldom in the time of King Henry I. said to be Capud terrae de Crancfeld Craule post regem Angliae And Roger de Molbray about the same time or shortly after made a grant in these words Roger de Molbray omnibus hominibus fidelibus suis Normannis Anglis salutem Sciatis quod ego concessi Roberto de Ardenna Clerico amico meo totum nemus de Bedericheslea cum omnibus antiquis libertatibus consuetudinibus ejusdem nemoris ad tenendum de me in Capite haeredibus meis ita libere quiete c. sicut ego unquam c. The Deed is without date but note that the direction of it is Omnibus hominibus fidelibus suis Normannis Anglis which implieth that it was made before Henry II's time for he being of Anjou in France and bringing in French-men with him altered then very properly the directions of Charters into Hominibus fidelibus suis Francis Anglis Yet I find the same direction tho' more improperly to be some time used under the Norman Kings Qu. So likewise as before W. Marshall the great Earl of Pembrock in a Charter of his useth these words about the beginning of Henry III's time as I take it Nisi fortè forinseca tenementa tenueris de me in Capite And Mat. Paris in An. 1250. making mention of one G. a Knight saith that Rex memoratus Hen. III. cuidam militi tenenti de Ecclesia S. Albani in Capite c. warennam concessit where the words tenenti de Ecclesia S. Albani in Capite do signifie that some Abbat of the Church of St. Alban first created and granted that Feud Having thus in general manner prepared my way to the ensuing discourse I shall now God willing by the patience of them whom it most concerneth examine such particular assertions as are produced in the Report either to prove our Tenures and Feuds with their dependancies to have been in use among the Saxons or to disprove what I have affirmed in my Glossary or in the Chapters here precedent and will first shew therein as followeth CHAP. V. What degrees and distinction of persons were among the Saxons and of what condition their lands were FOr the better understanding of our discourse it is necessary that we should shew what degrees and distinctions of persons were among the Saxons and of what condition their lands were Touching their persons they are by themselves divided in this manner Eorle and Ceorl and Ãegn and Ãeoden In Latin Comes and Villanus Tainus unus alius singuli pro modo suo That is to say the Earl and the Husbandman the Thane of the greater sort called the King's Thane and the Thane of the lesser sort called the Theoden or Vnder-thane More degrees the Saxons had not in their Laity and among these must all the tenures lye that were in use with them As for their bond-men whom they called Theowes and Esnes they were not counted members of that Common-wealth but parcels of their Master's goods and substance Touching lands among the Saxons they were of two sorts Bocland and Folcland Bocland signifieth terram codicillarem or librariam Charter-lands for the Saxons called a Deed or Charter an bec i. e. librum a book and this properly was their terra haereditaria for it commonly carried with it the absolute inheritance and propriety of the Land and was therefore preserved in writing and possess'd by the Thanes and Nobler sort as proedium nobile liberum immune a servitiis vulgaribus servilibus In which respect the Thanes themselves were also called liberales as appeareth by Canute's Forest-laws Art 1. 3.
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