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
Richard Tribunus Regis or Marshal to King Henry II. 166. Hundradors 51. Hundreds their original 50. Hundred Courts 51. Hunting forbidden to Clergy-men 109 112 113 114 115. Hydes what 17. When disus'd 4â— I Ibreneys Rad. de 190. Iceni 135. Eorum nomina derivatio ibid. Icenia 135. Ejusdem termini ibid. Coelum solum 13â— Ina King of the West Saxons adjusted the quantity of Rent for every Plough-land 15. By whose advice he made his Laws 61. Made a strict Law against working on Sundays 57. Ingolsthorp 146. Inland what 12. Intwood 157. K. John's Magna Charta 63. John Marshal to King Henry I. 165. Irregularity of Clergy-men wherein it consists 109 112. I se fluvius unde dictus 135. Ejusdem aestus 139. Islepe Sim Arch-bishop of Canterbury 90. Jury taken out of several Hundreds in a County 53. Jurours prohibited to have meat c. till agreed of their Verdict 89. Jus Gentium 2. Justices of Evre when instituted 27. Justinian the Emperor when he flourish'd 129. He prohibited Clergy-men to take cognizance of Wills ibid. Justitium what 72. K Keninghall 158. Kent the custom of Gavelkind in that County 43. Kettringham 15â— The King the fountain of all Feuds and Tenures 1â— The King to have his Tenants lands till the heir has done homage 3â— The King universal Lord of his whole Territories 37. Anciently granted Churches to Lay-men 115 Knight what among the Saxons 51 58. Why there are but two Knights of the Shire for a County 64. Knight's-fees 3 4 51 58. When introduc'd 45. The number of them ibid. The value of a Knights-fee ibid. Knight-service 2 7. Kymberley 158. S Sacha Soca what in the Saxon tongue 51. Saliques bring the German feodal Rights into France 5. Sall in Norfolk 151. Sandringham 146. Sanhadrim when and where the Judges of it sate 75. Satrapies among the Saxons 50. Saxons the first planters of the German Rites in Great Britain 5. Their Charters translated 7. The manner of making their conveyances 8 Distinction of persons among them 11. How many degrees of Honour they had 16. How they held their lands 40. What oblig'd 'em to so many kinds of services ibid. Saxons very much given to drunkenness 89. When they took possession of England 100. They swept away the Roman Laws there 101 Yet took somewhat from them 102. Why their Laws were not at first put in writing ibid. When they had written Laws ibid. The use of wills unknown to the ancient Saxons 127. Our Saxons observ'd the Civil Law in their wills 128. Scutagium 36 37. Sedgeford 146. Segrave Nicholas Marshal of England 167. Seignory wherein it consists 2. Services how many sorts of 'em upon lands 17. Personal services 40. Praedial ibid. Alodial ibid. Beneficiary ibid. Colonical ibid. Servitia militaria what 46. The difference between them and Servitutes militares ibid Seymour Edward Duke of Somerset Nephew of King Edw. VI. 169. Made Lord Treasurer and Earl Marshal of England ibid. Shardlow Joh Justice of Oyer had a licence to hear causes on a Festival 95 96. Sharnburn 146. History of the Family 189 c. Shelton 156. Shouldham 142. Shyre gemot what 53. Signioral authority what 6â— Snetsham 146 189 190 c. Socage 3 7 33 43. Socmen 1â— 15 57. Sprowston 153. Stanchow 146 19â— Star chamber Court 94 95. Stigand Arch-bishop of Canterbury depos'd 119. Stock-Chappel 146. Stow-Bardolfe 140. Strangbow Gilb Earl of Pembroke and Marshal of the King's Palace 165. Suiters of the Hundred 51. When and by whom call'd at this day ibid. Summons the manner of it in the Empire 36. Sunday how exempted from Law Suits 76. Sustenance what 59. Swasham 141. Swainmote-Courts 85. Syndici who 63 64. Synod of Eanham when held 78. T Talbot George Earl of Shrewsbury 171. Executed the Office of Lord High Steward of England ibid. Tallagium 60. Tasburg 156. Tassilo Duke of Bavaria did homage to King Pipin 34. Tenant lands of how many sorts 4. Tenants by Knight-service 4. Tenant in capite 10. Tenant in menalty ibid. Tenant Paraval ibid. Tenant's land or the Tenancy 12. Tenants what they were in ancient time 51. Tenants in Socage 57. Tenants forc'd to pay a fine upon the marriage of a Daughter 60. To furnish their Lords with provisions ibid. To present them with gratuities ibid. Tenure in capite 2. By Knight-service 4 7. The Original of Tenures 4. Tenure in Socage 4 7. Tenures for Life ibid. What tenures were in use among the Saxons 7. When first us'd ibid. No tenures in capite among the Saxons 10. Tenure in capite of two sorts ibid. The fruits of feodal tenures 24. The name of tenures not us'd by the Saxons 40. Terminus what it signifies 71. When the word became frequent ibid. Terms their definition and etymology 71. Several acceptations of the word 70. Full term and Puisne term ibid. The Original of Terms 73 77. Two Terms among the Welch 74. The Terms laid out according to the ancient Laws 82. The ancient bounds of Hilary-Term 82 83. Of Easter-Term 83. Of Trinity-Term 84 85. Of Michaelmass-Term 85 86. How Trinity Term was alter'd 87. Michaelmass-Term how abbreviated 88. Why the Terms are sometime extended into the Vacation 95. Terra Regis 57. Terrae testamentales 12. Terrington 138. Tertium denarium 14. Testaments and last wills not in use among the ancient Hebrews 127. Not found in Scripture before Christ's time ibid. Expresly mention'd by St. Paul ibid. Not us'd by the Saxons or Normans ibid. The custom of making wills from whom taken up ibid. How many witnesses to a will requir'd by the Civil Law 128. Thane or Theoden who 10 11. Their several kinds 16. Not properly a title of Dignity ibid. The Etymology of their name ibid. The quality of their Persons ibid. The nature of their Land 17. The word Thane has no relation to war 21. A Thane's Heriot 31. Thane-lands not subject to feodal service 18. Charters of Thane-lands granted by Saxon Kings 19 20. The occasion of granting them 21. Thane-lands alienated ibid. Devised by will 22. Granted to women ibid. No service upon 'em but what was express'd ibid. Dispos d of at the pleasure of the owner 23. Charged with a Rent ibid. Might be restrain'd from alienation ibid. Thane-lands and Reveland what 38. Thani majores minores 16. Thani Regis ibid. Theinge 50. His jurisdiction ibid. Theowes and Esnes who 11. Thetford 158. Thokus Dominus de Sharnburn 189. Thola the widow of Ore had a grant of certain lands of K. Edw. the Confessour 20. Obtain'd a Licence to devise her Lands and Goods 34. Thrimsa what 15. Thrithingreves or Leidgerevâ—s their Office and Authority 52. What causes were usually brought before ' em ibid. Tribunus militum rei militaris aut exercitus 165. Tribute 59. Trimarcesia what 3. Trinity-term its ancient bounds 84 85. How it was alter'd and shortned 87. Trinodis necessitas 17 43. Trithings or Lathes 50. Why so call'd 52. Turfs why so call'd 139 140. Tydd
of any other For at Ebsa in Suthry under the title of Ric. fil Comitis Gisleberti it saith Hanc terram tenuerunt novem Teigni cum ea poterant utere quo volebant Plain Latin but the sense is That nine Thanes held this land of Ebsam in the time of Edward the Confessor and might do with it what they would So at Est-Burnham in Buckinghamshire under the title of Milo Crispin Duo Teigni homines Brictrici hanc terram tenuerunt vendere potuere and here it seemeth that these Thanes were not the Kings Thanes but of the lesser sort for that he calleth them homines Brictrici So in the same Shire under the title of S. Petr. Westmon it is said of the same Town of Est-Burnham Hoc manerium tres Treigni Tempore Regis Edwardi tenuerunt vendere potuerunt It there also appeareth that the Thane-land might be charg'd with a rent issuing out of it for it immediately followeth tamen ipsi tres reddiderunt quinque oras de consuetudine And it might be restrain'd from alienation as where it is said in Doomsday De ea viz. Lega Pelton sunt in dominio duae hidae una ex hiis fuit Tainland non tamen poterat ab Ecclesia separari Where the word tamen implyeth that altho' Thane-lands might otherwise be alienated yet this particularly could not So likewise might it be entailed upon a Family as appeareth in the laws of Alured Cap. 37. But thus Doomsday after the Conquest affirmeth the same that the Charters did before the Conquest And the words both in the one and the other which shew that the Thane might sell or use this land as he would do imply an estate of inheritance independant of any Lord either feodal or superior and was as even the Alodium mentioned in the Chapter of Thanes but whether it were descendable only upon the eldest son or dividable between all the sons as in Gavelkind I cannot say but the formula of Alodium join'd with Marculfus doth divide it between them all CHAP. XII The fruits of Feodal Tenures and that they were not sound among the Saxons or not after our manner HItherto we have sought our Tenures among the Saxons and have not found them tho' the Report telleth us It is most manifest that they were frequent and common in the times of the Saxons We will now follow the direction of our Saviour and see if by the fruit we can find the tree The Report saith by question and answer The fruits of the Tenure viz. in Capite and Knights-service what are they but the 1 Profits of the lands 2 Wardship 3 Livery 4 Primier seisin 5 Relief mistaken to be an Heriot 6 Fine for alienation and the rest Which rest it supplyeth shortly after to be 7 Homage 8 Fealty 9 Escuage Adding again Relief and Wardship instead whereof I out of a third passage do place 10 Escheats And it concludeth that As all these tenures were common in those times so were all the fruits of them c. Which if it be true the question is determined nay I yield it if any one of them agreeing directly with our Tenures be found amongst them some shew of Fealty and Licence to alien lands granted for a certain time only excepted for avoiding captious disputation Their very names pretend no Saxon antiquity but as the Ephramites bewrayed their Tribe by their Language so by their names these fruits discover themselves to be of Norman progeny And the Report doth not give us one instance or example of any of them in all the Saxon times If it did the words before mention'd in the Charters to the Thanes declaring that their land must be libera ab omni seculari gravedine c. sweep all away at once as the West-wind did the Grashoppers in Egypt and do make the Thane-lands to have the priviledge of Alodium here before mention'd to belong unto them that is to be free from all tenure and service It is true notwithstanding that both the greater and lesser-Thanes might have and had other lands besides these that were hereditary of feudal nature and holden by military service as in the Charter of Oswald the Bishop shall after appear but they holding them like Folcland only at the will of the Lord whether King or other or for certain years or at most for life or lives their Tenure and Feuds determin'd with the will of the Lord the term of years or estate for life And then could not any of the fruits before spoken of accrue unto the Lord that granted the land for that it forthwith reverted intirely into his own hands and was to be kept and dispos'd a-new as pleas'd him It is apparent therefore by this general demonstration that the fruits we speak of could not arise out of either of the Thane-lands were they temporary or hereditary if not haply fealty or some gratuity to the Lord for licence that the temporary Tenant might assign his interest or have it enlarg'd things proper as well to Socage and Folcland as to Feudal But let us examine all these fruits particularly and see whether and how we find any of them among the Saxons and give me leave herein to produce them in such order tho' not logical as the Report presenteth them to the Reader in their several places CHAP. XIII No profit of Land by Wardship in the Saxons time AS for the profits of the land which the King hath now during the minority of a Ward it is manifest that the Kings then had no such of the Thane-lands for that the Thane had this particular priviledge that when he dy'd he might make his Will of his own lands as it formerly appeareth and give them unto whom he would which was never lawful after the coming of the Normans for any Baron or Tenant by Knight-service to do till the statute 32. Hen. VIII Cap. 1. gave free liberty to all men to devise all Socage-land by their last Will in writing and no more than two parts only of land holden in Capite or by Knight-service least it should hinder the Lords too much of their Feodal profits And Socage-lands were therefore long before devisable in many Burroughs for that thereby the Lord sustain'd no such prejudice But to conclude this point in one word it shall I hope be made manifest in the next Chapter that there were no Wardships amongst the Saxons and thereupon it will follow invincibly there could be then no profits of lands arising to the King or Lords by title of Wardship CHAP. XIV No Wardship in England amongst the Saxons Objections answered IN following the Report I must now speak de causa post causatum of Wardship after the Profits of land growing by it This being the chiefest fruit of all feodal servitudes and the root from whence many branches of like grievances take their original the Report laboureth more to prove it to
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
pag. 89. concerning this Treatise I shall here briefly exhibit some particulars which I acknowledge to have gather'd from an ample and most judicious discourse on this Subject written by the Learned Sir Henry Spelman Knight in 1614. very well worthy to be made publick THE Occasion of this Discourse ABout fourty two years since divers Gentlemen in London studious of Antiquities fram'd themselves into a College or Society of Antiquaries appointing to meet every Friday weekly in the Term at a place agreed of and for Learning sake to confer upon some questions in that Faculty and to sup together The place after a meeting or two became certain at Darby-house where the Herald's-Office is kept and two Questions were propounded at every meeting to be handled at the next that followed so that every man had a sennight's respite to advise upon them and then to deliver his opinion That which seem'd most material was by one of the company chosen for the purpose to be enter'd in a book that so it might remain unto posterity The Society increased daily many persons of great worth as well noble as other learned joyning themselves unto it Thus it continu'd divers years but as all good uses commonly decline so many of the chief Supporters hereof either dying or withdrawing themselves from London into the Country this among the rest grew for twenty years to be discontinu'd But it then came again into the mind of divers principal Gentlemen to revive it and for that purpose upon the day of in the year 1614. there met at the same place Sir James Ley Knight then Attorney of the Court of Wards since Earl of Marleborough and Lord Treasurer of England Sir Robert Cotton Knight and Baronett Sir John Davies his Majestie 's Attorney for Ireland Sir Richard St. George Knt. then Norrey Mr. Hackwell the Queen's Solicitor Mr. Camden then Clarentieux my self and some others Of these the Lord Treasurer Sir Robert Cotton Mr. Camden and my self had been of the original Foundation and to my knowledge were all then living of that sort saving Sir John Doderidge Knight Justice of the King 's Bench. We held it sufficient for that time to revive the meeting and only conceiv'd some rules of Government and limitation to be observ'd amongst us whereof this was one That for avoid offence we should neither meddle with matters of State nor of Religion And agreeing of two Questions for the next meeting we chose Mr. Hackwell to be our Register and the Convocator of our Assemblies for the present and supping together so departed One of the Questions was touching the Original of the Terms about which as being obscure and generally mistaken I bestow'd some extraordinary pains that coming short of others in understanding I might equal them if I could in diligence But before our next meeting we had notice that his Majesty took a little mislike of our Society not being enform'd that we had resolv'd to decline all matters of State Yet hereupon we forbare to meet again and so all our labours lost But mine lying by me and having been often desir'd of me by some of my Friends I thought good upon a review and augmentation to let it creep abroad in the form you see it wishing it might be rectify'd by some better judgement SECT I. Of the Terms in general AS our Law books have nothing to my knowledge touching the original of the Terms so were it much better if our Chronicles had as little For tho' it be little they have in that kind yet is that little very untrue affirming that William the Conquerour did first institute them It is not worth the examining who was Author of the errour but it seemeth Polydore Virgil an Alien in our Common-wealth and not well endenized in our Antiquities spread it first in Print I purpose not to take it upon any man's word but searching for the fountain will if I can deduce them from thence beginning with their definition The Terms be certain portions of the year in which only the King's Justices hold plea in the high Temporal Courts of causes belonging to their Jurisdiction in the places thereto assigned according to the ancient Rites and Customs of the Kingdom The definition divides it self and offers these parts to be consider'd 1. The Names they bear 2. The Original they come from 3. The Time they continue 4. The Persons they are held by 5. The Causes they deal with 6. The Place they are kept in 7. The Rites they are performed with The parts minister matter for a Book at large but my purpose upon the occasion impos'd being to deal only with the Institution of the Terms I will travel no farther than the three first stages of my division that is touching their Name their Original and their Time of continuance SECT II. Of the Names of the Terms THe word Terminus is of the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifieth the Bound End or Limit of a thing here particularly of the time for Law matters In the Civil Law it also signifieth a day set to the Defendant and in that sense doth Bracton Glanvil and others sometimes use it Mat. Paris calleth the Sheriff's Turn Terminum Vicecomitis and in the addition to the MSS. Laws of King Inas Terminus is applied to the Hundred-Court as also in a Charter of Hen. I. prescribing the time of holding the Court. And we ordinarily use it for any set portion of Time as of Life Years Lease c. The space between the Terms is named Vacation à Vacando as being leasure from Law business by Latinists Justitium à jure stando because the Law is now at a stop or stand The Civilians and Canonists call Term-time Dies Juridicos Law-days the Vacation Dies Feriales days of leasure or intermission Festival-days as being indeed sequester'd from troublesome affairs of humane business and devoted properly to the service of God and his Church According to this our Saxon and Norman Ancestors divided the year also between God and the King calling those days and parts that were assigned to God Dies pacis Ecclesiae the residue alloted to the King Dies or tempus pacis Regis Divisum Imperium cum Jove Caesar habet Other names I find none anciently among us nor the word Terminus to be frequent till the age of Henry II. wherein Gervasius Tilburiensis and Ranulphus de Glanvilla if those books be theirs do continually use it for Dies pacis Regis The ancient Romans in like manner divided their year between their Gods and their Common-wealth naming their Law-days or Term-time Fastos because their Praetor or Judge might then Fari that is speak freely their Vacation or days of Intermission as appointed to the service of their Gods they called Nefastos for that the Praetor might ne fari not speak in them judicially Ovid Fastorum lib. 1. thus expresseth it Ille Nefastus erat per quem tria verba silentur Fastus erat per
Carew Contrary to a perswasion very common now adays That Philosophy Oratory Poetry and the other Exercises which take up the first four years in our Universities are altogether foreign to the business of Lawyers and that the study of them is so much loss of time to Gentlemen design'd for that honourable Profession After he had continu'd at home about a twelve-month he was sent to study the Law at Lincoln's-Inn either with a design to practise it or which is more likely as a necessary accomplishment of an English Gentleman There he stay'd almost three years but was then unhappily remov'd when we may imagine he began to relish the Law and in some measure to conquer the difficulties of it Many years after we find him complaining of his hard Fortune in the Preface to his Glossary and he concludes his complaint with a character of the Common-Law which I will here transcribe for the honour of the Profession Excussit me interea è Clientela sua speaking of the Law gratiae potestatis dignitatis immensaeque apud nos largitrix opulentiae Illa inquam vestitu simplici inculto sed jurium omnium Municipalium absit dictis invidia nobilissima domina omni utpote justitia moderamine prudentia sublimique acumine temere licet eam perstrinxerit Hottomannus refertissima He was about twenty years of Age and retiring into the Countrey married the eldest Daughter and Coheir of John Le Strange a Gentleman of an ancient Family in Norfolk By this match he became Guardian to Sir Hamon Le Strange during whose Minority he liv'd at Hunstanton the Seat of that Family and was High Sheriff of Norfolk By degrees he begun to be taken notice of for his great Prudence and Abilities and was accordingly three several times sent by the King into Ireland upon publick business At home he was appointed one of the Commissioners To enquire into the oppression of exacted Fees in all the Courts and Offices of England as well Ecclesiastical as Civil which a late Author calls A noble Examination and full of Justice To this business he gave his constant attendance for many years together with great integrity and application and the Government was so sensible of his good services that the Council procur'd his Majesties Writt of Privy Seal for 300l. to be presented to him not as a full Recompence for so they declar'd but only as an occasional Remembrance till they should have an opportunity of doing something for him that might be a more suitable consideration for his diligence in that and other publick Affairs This attendance made him neglect his own private business to the great prejudice of his Family as he himself seems to complain in his Preface to the Glossary And his eldest Son Sir John Spelman represented to the Privy Councel how much his Father's Estate had suffer'd by it appealing for a proof of his great pains therein to the knowledge of several of their Lordships to the Journals of that Commission and to his papers and collections relating to the same I cannot give any particular account of the other publick Services wherein he was employ'd He was Knighted by K. James who had a particular esteem for him as well on account of his known capacity for business as his great Learning in many kinds more especially in the Laws and Antiquities of our Nation These for a good part of his Life he seems to have study'd for the service of his Prince and his own diversion but not with an eye to any particular design When he was about 50. years of Age he resolv'd to draw his affairs into as narrow a compass as might be with a full design to bestow the remainder of his time among Books and Learned Men. With this resolution he sold his Stock let his Estate quitted the Countrey and settl'd in London with his wife and family His next business was as he himself tells us to get together all such Books and Manuscripts as concern'd the subject of Antiquities whether foreign or domestick For in these Enquiries he had ever had a particular delight and now being in a good measure free'd from the daily disturbances he was before exposed to it was natural for him to fall into a study to which his own genius had always led him It is likely he had then a good understanding of the Laws and Customs of the Kingdom I mean the Modern part of them such as is commonly us'd in the ordinary practice of it But such a general knowledge could not satisfie a Mind so curious and a Judgement so solid as his appears to have been in all his Writings These inclin'd him to search into the Reasons and Foundations of the Law which he knew were not to be learnt but from the Customs and Histories of our Nation in all Ages nor these Usages to be trac'd out but by a strict examination of the most ancient Records and Manuscripts And as his own inclination led him to this Enquiry so not troubling himself with the Practice of the Law but content to live quietly upon his own Estate he was perfectly at leasure to pursue it And indeed as the best things in this world are attended with inconveniences it is very much to the disadvantage of the Law that those of the Long Robe who are best qualified to improve the knowledge of it from original Records are so much taken up with the business of their Profession that they have little time to bestow upon those matters As on the other hand Men who are born to Leasure and Estates however inclinable they may be to the more polite parts of Learning do seldom care to engage in a study which at first sight seems to be so rough and tedious Thus the one wants Leasure and the other Resolution and so the Monuments of our Fore-fathers being neglected we are depriv'd of a great deal of useful knowledge that might be drawn from them It was the happiness of Sir Henry Spelman and much more of the English Nation that he had both time and inclination to do it I mean to examine the ancient Laws and Monuments not only of our own but also of most other Northern Kingdoms Particularly he was very well versed in the old Feudal law and has shewn us in a Discourse upon that head how most of the Tenures here in England have their foundation from thence This near relation between their Customs and our Constitutions made him many times marvel that my Lord Cooke adorning our Law with so many flowers of Antiquity and foreign learning should not turn aside into this field from whence so many roots of our Law have of old been taken and transplanted And I wish so he goes on some worthy Lawyer would read them diligently and shew the several heads from whence these of ours are taken They beyond the seas are not only diligent but very curious in this kind but we
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
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.
Earldoms But say they tenue neant moiens en fief a vie c. holden notwithstanding as a fief for life not hereditary nor patrimonial in the beginning as afterward they were This change they assign to have been begun about the end of the first line of their Kings who being at that time weak and simple men the Dukes and Earls took opportunity to make their Estates hereditary But it continued not long for the first Kings of the second line reduced them presently to conformity Yet some there were in the remote Provinces that maintain'd themselves hereditary in despight of the Kings whereupon ensued many wars Thus far both these Authors do concur and then Loyseau addeth further That at the end of the second line Hugh Capet having made himself King of France permitted all to hold their Dukedoms Earldoms and Seigneuries hereditarily and taking homage of them as of hereditary Fiefs each party obliged themselves to support the other and their posterity in those dignities as hereditarily This happened in France a little before the Conquest of England and from this precedent of Hugh Capet's did our William the Conquerour make the Earldoms and Feuds in England first hereditary as we have already shewed in the second Chapter So that I conclude as I assumed in the beginning that the Saxon Earldoms were not hereditary nor otherwise Feodal if we shall so term them than for life whereon neither Wardship nor Marriage c. could depend Yet I confess that the Dukes and Earls of the Saxon times both had and might have great possessions in other lands as patrimonial and hereditary namely their Thaneland and in what condition they possessed them it shall appear anon when we come to speak more at large of Thanes and Thane-lands CHAP. VII Of Ceorls and that they were ordinarily but as Tenants at will or having lands held not by Knight-service THe division before mentioned which the Saxons made of their own degrees leadeth me in this next place tho' not orderly to speak of the Ceorle that is of the Carle or Churle and Husbandman The Ancients called him in Latin Villanus not as we ordinarily take it for a Bondman but for him that dwelling in a Village or Country Town lived by the Country course of Husbandry Mr. Lambard therefore to decline the misconceiving of the word Villanus doth render it in the Saxon laws by Paganus which signifieth the same that Villanus doth according to the French for a Villager but not according to our English for a Bondman Our Saxons otherwhile did term them like the Dutchmen Boors that is such as live by tilth or grasing and by works of husbandry Such were the Ceorls among the Saxons but of two sorts one that hired the Lord's Outland or Tenementary land called also the Folcland like our Farmers the other that tilled and manured his Inland or Demeans yielding operam not censum work and not rent and were thereupon called his Socmen or Ploughmen These no doubt were oftentimes his very Bondmen I therefore shall not meddle with them but will hold me to the first sort who having ordinarily no lands of their own lived upon the Outlands before mentioned of their Lord the Thane as custumary Tenants at his will after the usual manner of that time rendring unto him a certain portion of victuals and things necessary for Hospitality This rent or retribution they called Feorme but the word in the Saxon signifieth meat or victuals and tho' we have ever since Henry II's time chang'd this reservation of victuals into money yet in letting our lands we still retain the name of Fearms and Fearmers unto this day The quantity of the Fearme or rent for every plough-land seemeth in those times to have been certain in every Country according to the nature of the place King Ina in his laws did make it so through all the territory of the West-Saxons as you may see with much more touching this matter in my Glossary verbo Firma But insomuch as the chiefest part of the fruit and profits of the lands thus manured by the Ceorls or Husbandmen redounded to the benefit of their Lords and not of the Ceorls themselves the Romans counted them to be as bondmen and not freemen Caesar therefore speaking of them while they were yet in Germany saith Plebs pene servorum habebatur loco That their common people were in a manner bondmen And Tacitus to the same purpose Caeteris servis meaning these Ceorls or Husbandmen non in nostrum morem descriptis per familiam ministeriis utuntur suam quisque sedem suos penates regit Frumenti modum Dominus aut pecoris aut vestis ut colono injungit Et servus hactenus paret But this service was no bondage For the Ceorl or Husbandman might as well leave this land at his will as the Lord might put him from it at his will and therefore it was provided by the laws of Ina in what manner he should leave the land when he departed from it to another place And the Writ of Waste in Fitz-Herbert seemeth to shew that they might depart if they were not then well used It is apparent also that the Ceorl was of free condition for that his person was valued as a member of the Common-wealth in the laws of Aethelstan and his least valuation is there reckoned to be 200s. whereas the Bondman was not valued at all for that he was not as I said any part of the Common-wealth but of his Master's substance nor was he capable of any publick office But the Ceorl tho' he had no land might rise to be the leader of his Country-men and to use the armour of a Thane or Knight viz. an Helmet an Habergeon and a gilt Sword And if his wealth so increased as that he became owner of five hides of land the valuation of his person which they call'd his Were or Weregild was increased to two thousand thrimsas that is six thousand shillings and being then also adorned with other marks of dignity he was counted for a Thane as you shall see in the next Chapter But for all this a Ceorl or Husbandman tho' he were a Freeman was not by the Feodal law of that and later times capable of a Knights-fee or land holden by military service and therefore what land soever he purchased was to be intended land of no such tenure And it appeareth further by the laws of Aethelstan that the five hides of land before mentioned purchased by the Ceorl were descendable to his posterity which sheweth also that they were not feodal land for that feuds at that time were not here descendable as we have often declared So that I hope I may conclude that the Ceorls or Husbandmen among the Saxons held no land by our tenure of Knight-service CHAP. VIII Of Thanes and their several kinds SEeing then the weight of the question will rest wholly upon the
have been in use among our Saxons than it doth in all the rest of them and enforceth me thereby to the greater labour in examining it and discovering the contrary Touching the name Wardship I confess it carryeth a Saxon sound but from Norman God-fathers with whom Gard signifying the same that Ward doth with us and they bringing this custom into England our English Ancestors as in a multitude of other words changed the Norman G. into a W. and so made Ward for Gard and thereof Wardship for Gardship Yet to this day we call him that hath the custody of the ward after the Norman manner his Gardian not his Warden But I find neither Ward Wardship nor Warden in this sense in any Saxon Law Charter or Manuscript or any thing conducing to such signification The proof being in the affirmative lyeth on the other side yet doth not the Report produce one single Case Text or Precedent to maintain their assertion but like Pythagoras's Schollars resteth wholly upon Ipse dixit such and such have said it and I am now turn'd over to those Authors They have chosen a right good foreman 1 confess Mr. Selden of whom I say as she in Ovid Nomine in Hectoreo pallida semper eram But let us hear what he affirms according as the Report conceiveth him where the words be thus That Wardships were then viz. in the Saxon's time in use and not brought in by the Normans as Mr. Cambden in his Britt 179. nor by Henry III. as Randolph Hygden c. would perswade Vid. Selden's notes to Fortâ—scue 51. The Report says Vide and I say audi Mr. Selden to confute this opinion attributed to Rand. Hygden useth these words Neither is the custom of Wardship so new as R. Hygden in his Polycronicon or rather some others not understanding him ignorantly make it by supposing the beginning of it here under Hen. III. clearly Wardships were before or from the Normans at least Thus Mr. Selden There may be some amphiboly in the word before as doubtful whether it shall relate to the Normans or to Hen. III. but the occasion of his speech is to confute the opinion of them that did attribute the beginning of Wardships to Hen. III. saying that clearly they were before and tho' he determineth not how long before yet he concludeth that from the Normans at least citing Glanvill to shew they were in use in Hen. II's time and the Grand Custumer of Normandy to fetch them higher than so from the Normans who by the opinion of Berhault that writ the Commentary to that Custumary did first bring them into England Mr. Selden God be thanked is living to explain himself and I find by chance where he hath done it fully His words in the Titles of Honour be thus These kind of Military Fiess or Fees as we now have were not till the Normans with whom the customs of Wardship in Chivalry they began not under Hen. III. as most ignorantly R. Hygden the monk of Chester and Polydore tells you came into England And speaking by and by of Malcolm second King of Scotland who dyed about twenty two years before the Conquest he saith But in this Malcolme's time Wardships were not at all in England Thus Mr. Selden whom they so often press against me out of ambiguous places is clearly with me Their next Authority to prove Wardships to have been in use amongst the Saxons is saith the Report that amongst the priviledges granted by Edw. the Confessour to the Cinque Ports we meet with this That their heirs shall not be in Ward For this they cite Lambard's Perambulation of Kent p. 101. but I demand Oyer of the Record and I verily perswade my self Nul tiel Recorde nor in truth hath Lambard averr'd that there is Lambard's words be these The priviledges of these Ports being first granted by Edw. the Confessour and William the Conqueror and then confirm'd and encreased by William Rufus Hen. II. Rich. I. Hen. III. and King Edw. the first be great c. And in reciting some of these priviledges he tells us amongst the rest That they themselves the Inhabitants of the Cinque Ports be exempted from all payments of Subsidies and their Heirs freed from Wardship of body notwithstanding any Tenure He doth not say that this is in the Charter of Edward the Confessor but that it is among the priviledges granted by him and William the Conqueror and then confirm'd and encreas'd by the succeeding Kings Doubtless the word Subsidies here mention'd in this sense was not in use either in the Confessor or Conqueror's time nor in many years after till Taxes Aids and Tallages were grudged at and restrain'd I am therefore confident that this came in among the encreased priviledges afterward and it appeareth that Mr. Lambard was not perswaded that there was such a Charter of the Confessor's time and therefore waving it seeketh the original of the priviledges of the Cinque Ports no further than the Conqueror Why then do we father this upon the Confessor especially seeing the Charter of Anno 6. Edw. I. wherein all the Charters of the precedent Kings seem to be mention'd that of Edw. the Confessor is not spoken of The third assertion is that in the customs of Kent which are in Magna Charta of Tottil's Edition and in Lambard's Perambulation there is a rule for the Wardship of the heir in Gavelkind and that he shall not be married by the Lord. And those customs say of themselves that they were devant le Conqueste e en le Conqueste The words in Lambard be devant le Conqueste e en le Conquest e toutes houres ieskes en ca. That is before the Conquest and at the Conquest and ever since till now which word now relateth to the 2â— of Edw. I. there immediately before mention'd And to save the credit of the Author must be favourably understood to be meant of such customs as were in use either before the Conquest or at the Conquest or at any time since in the disjunctive not in the aggregative For if it be taken conjunctively then is it notoriously false for some things mention'd in it had their original under Hen. II. as the Grand Assize and Justices of Eyer whereof that of Eyer was not instituted till the Council or Parliament as we now call it of Nottingham An. Dom. 1176. viz. in the 22. or 23. of Hen. II. And for that of the Grand Assize it is expresly said in the customs that it was granted them by Hen. III Many other things there be as the Office of the Crowner the manner of Essoyning Writ of Cessavit c. which I suppose was never heard of before the Conquest But if you mark it the words in question viz. devant le Conquest c. stand in Lambard at a little more distance than the lines precedent as if himself conceiv'd them not to belong unto the
text of customs And to clear the doubt in the elder Edition publish'd by Tottill 12. June 1556. no such thing is mention'd but if it were there are such other differences in their copies as both their authorities may be question'd and I in the mean time well delivered from this objection Let us see what followeth Fourthly For the antiquity of Wardships in England and Scotland See also says the Report Hector Boet. lib. 2. Buchanan rerum Scot. lib. 6. and the laws of Malcome II. which prove the antiquity of Wardships in Scotland and in England before the Conquest For in those times it is probable the laws of both Nations did not much differ as for the times after it appears they did not by comparing their Regiam Majestatem with our Glanvil Neither is the bare conjecture of Sir Henry Spelman sufficient to take away the force of those laws Vid. Spelman's Glossary verbo Feudum Upon all this saith the Report they the Justices of Ireland did conclude and proceed to sentence With the sentence as a sacred thing I will not meddle But as touching that part of this argument which In nostros fabricata est machina muros I 'm tyed either to answer or to submit For Hector Boethius therefore I confess the place to be truly alledg'd and that hitherto hath seldom happened but for the credit of that Author I wish Leland were alive to deliver the censure he hath left upon him with his own mouth I forbear it True it is he relateth that Malcolm II. gave all his lands well nigh unto his Nobility in reward of their service and that they in thankfulness to support his dignity regranted unto him Vardam Desponsationem releviam al. relevatam Wardship and Marriage of their Heirs within age and Relief of those of full age The Paragraph there is long but to the effect we spoke of It is also true that Buchanan doth report the like and since him Cameraris and a little before them all Johannes Major but all their harping is from the sound of one string which in the Report is not left unstrain'd i. e. the laws of Malcolme before mention'd where it is said that ad montem placiti in Villa de Scona omnes Barones concesserunt sibi Wardam Releviam de Haerede cujuscunque Baronis defuncti ad sustentationem Domini Regis Which because they concern a noble Kindom and have been receiv'd as authentical by an ancient Parliament I will not presume to contradict it But I humbly offer to the consideration of the Learned of that Kingdom and to those of ours and theirs that are conversant in Antiquities these particulars following First It being agreed which the Scots affirm that Malcolm II. began his reign in the year 1004. i. e. above 60. years before the Normans Conquer'd England how it cometh to pass that Malcolm useth so many Norman words in his Scottish Laws and whether those words be found in any other monument there before for in England it was not so Secondly Whether their Kings then had not only a Seal but magnum sigillum in the custody of the Chancellor and set-fees appointed for the use of it for in England it was not so tho Edward the Confessour had a Seal after Malcolm's time Thirdly Whether they had brevia clausa in cera and other ordinary instruments seal'd cum magno sigillo and fees appointed for it for in England it was not so Fourthly Whether they had solemn presentations to Churches and Hospitals under Seals in that manner for this was long before the Council of Lateran Fifthly Whether they had then the names of Barons Seneschallus Constabularius Mareschallus not in use in England in the time of the Confessour as appeareth for the two latter by the Appendix to the Confessours laws and for their Seneschallus called their Steward Buchanan says he was brought in by Malcolm III. into Scotland Sixthly Whether the Norman Officers of Justiciarius Vicecomes Coronator Ballivus c. were then in use by any other proof than by or from these laws sic de caeteris Many other things I pretermit and take no exception to the frequent mention of Pounds and Shillings tho' I know they were scarce with them in Scotland as not abundant then in England but paid in Truck and Cattel But I admit that which the Report saith that in those times it is probable the laws of both Nations did not much differ As for the times after it appeareth they did not by comparing their Regiam Majestatem with our Glanvil They run much I confess paribus vestigiis and oftentimes totidem verbis iisdem paragraphis Whether of them leads or follows the other I dare not define and am loath to dispute The Preface to the Regia Majestas sheweth it to be written at the command of King David whom Skeneus in his Annotations calleth the first and saith he began to reign Anno 1124. i. e. 24. or 25. of Hen. I. And 't is certain that our Glanvil was not written till the time of Hen. II. who began not to reign till 1154. so that if this be true it must needs follow that we took a great part of the modell of our laws or at least the expression of them from the Scots which our Ancestors never yet acknowledg'd It may perhaps fall out upon better examination that David I. may be mistaken for David II. But for the part of Malcolm II's laws which speak of Wardship Marriage and Relief in Scotland at that time to have risen from their own Nobility Buchanan himself recedeth from that opinion and concludes Hunâ— morem ab Anglis Danis potius acceptum credo quod in tota Anglia parte Normanniae adhuc perseveret And Demster himself their greatest Antiquary ingeniously consesseth that there were no Barons in Scotland till Malcolm III. created them And he might well take his precedent from the Conquerour for he liv'd all the time of the Conquerour and about seven years after so that if there were no Barons in Scotland in the time of Malcolm II. as Demster affirmeth or the precedent taken out of England for Wardship as Buchanan believeth then could not this law be made in Malcolm II's time but seemeth rather by both their opinions to be ascrib'd to Malcolm III. and that the error hath risen as easily it may in writing II. for III. But in the mean time all this makes no proof against me CHAP. XV. No Marriage of Wards AS for Marriage it is here and in some other places mention'd by the Report but not a word any where to prove that it belonged to the Lord in the Saxon time I will help them with what I meet in the old MS. Book of Ramsey Sect. 120. where it is said that one Edwine son of Othulf gave five hides of land to Archbishop Odo Pro eo quod Regem Edredum inflexerat ut ei liceret
by the Saxons it casteth anchor chiefly on Reliefs as a thing most evident and unanswerable the rest save Wardship it scarcely fortifieth with a breath besides the bare assertion This it saith was common and in pursuit thereof addeth these words For Reliefs we have full testimony in the Reliefs of their Earls and Thanes for which see the laws of King Canutus Cap. 68 and 69. the laws of Edw. the Confessor cap. de Heretochiis and what out of the book of Doomsday Coke hath in his Instit Sect. 103. Camden in Berkshire Selden in Eadmer 154. Great authorities secumque Deos in praelia ducunt We must not meddle with them all at once let us try them singly The law cited out of Canutus is in these words And beon ða heregeata Let the heriot which was to be paid after the death of great men be according to their dignities An Earl's eight Horses four sadled and four unsadled four Helmets four Corslets eight Spears and as many Shields four Swords and two hundred marks of Gold The heriot of a Thane next to the King four Horses two sadled and two unsadled two Swords four Spears four Shields one Helmet one Corslet and fifty marks Of the inferiour or midling Thane an Horse furnished and his weapon c. And he that less hath and less may let his heriot be two pound Here is speech indeed of an heriot but none of Relief I shall anon shew the difference between them and then hath this law nothing against me Touching the law alledged to be Edward the Confessor's the words be these Qui in bello ante Dominum suum ceciderit sit hoc in terra sit alibi sint ei relevationes condonatae c. Here I confess is mention of Reliefs but I deny this to be the law of Edward the Confessor 't is true that it is published by Lambard among his receiv'd laws but if you mark it in a differing letter as noting it to be an addition In an ancient MS. therefore which I have of those laws it is not sound nor in the printed copy of Roger Hoveden who wrote till the third year of King John that is 134. years after the Confessor's time with reverence therefore be it spoken it is mistaken both in the Report and by my Ld. Coke himself whom it followeth if they say that these words were part of the law of Edw. the Confessor yea the text it self maketh ..... of William the younger call'd Rufus But to conceal no truth it is delivered by Jornalensis Monachus in the very same words as a law of an elder King amongst us than the Confessor namely of Canutus our Danish King who in the 157. Chap. of his laws speaking of one slain in battel in the presence of his Lord saith expresly Sint ei relevationes condonatae Now the game seemeth to be wonn but stay a while and remember what I said before of the translations of our Saxon Laws and Charters into Latin The Saxons and the Danes whose Language and Laws differ'd little in those days wrote their Laws only in their own tongue and the translating of them hath begotten much variety and many controversies we must therefore resort to the original Saxon where this passage is in the 75 th Chap. of the second part of his Laws in these words se man ðe aet ðam syâ—dung toforan his hlaâ—ord â—ealle sy hit innan lande sy hit of lande beon herogeata forgyfene which is thus verbatim The man that in a military Voyage is slain before or in the presence of his Lord be it upon land or off of land let the Heriots be forgiven him He saith not let the Releifs but let the Heriots be forgiven him and I deny not but this might be one of the Danish Laws which Edward the Confessor took out of Canutus's Laws when he compos'd the Common Law out of the West Saxon Law Mercian Law and Dane Law if the copies of them were extant and it is very probable that William the Conquerour or one of his sons did turn that Law of Heriots into this of Reliefs For that which my Lord Coke hath out of Doomsday is the same which Mr. Cambden hath in Barkshire touching all that County Vt Tainus vel Miles Regis Dominicus moriens pro releviamento dimittebat Regi omnia arma sua Equum unum cum sella alium sine sella quod si essent canes vel accipitres praestabantur Regi ut sivellet acciperet Here is releviamentum us'd in the Conquerour's time which I doubt not but our Question is of it in the time of the Saxons That also cited by and out of Mr. Selden is of the same nature and one answer therefore serveth to all the three Yet by way of corollary I shall anon discover another error of this sort rising even from Doomsday it self and the Normans possessing this Kingdom of the Saxons but not well instructed in their Laws and Customs which is as followeth CHAP. XVIII Difference between Heriots and Reliefs HEriots were usual among the latter Saxons Reliefs among the elder Normans before their coming into England This according to the custom of the Feudal Law and other Nations that ordain'd by Ludovicus al. Clodoveus King of France about the year 511. to tame the Almans whom he then had brought to servitude I find it not in England till the Soveraigntie of the Danes The first Laws which I find that mention it are those of Canutus before mentioned who perhaps for the assurance of his throne us'd this politick device to have all the Armour of the Kingdom at his disposition in this manner when he had dismissed his Danish Army But it falling so out as the Heriot being to be paid at or after the death of the Old Tenant and the Relief at or before the entry of the new the Normans in this did like our Ancestors the Saxons who because our Christian Pascha or Passover fell out yearly to be celebrated about the time of the Feast of their Idol Easter call'd our Passover by the name of their Easter so they seem to have conceiv'd the Saxon heriot to be the same that their Norman Relief was and therefore translated the word heriot by Releviamentum or Relevium and raising the form of their Feudal Law in England drew the Saxon customs to cohere therewith as much as might be But there is great difference between Heriots and Reliefs for Heriots were Militiae apparatus which the word signifieth and devised as I said before to keep the conquered Nation in subjection and to support the publick strength and military furniture of the Kingdom the Reliefs for the private commodity of the Lord that he might not have inutilem proprietatem in the Seignory The Heriots were therefore properly paid in habiliments of war the Reliefs usually in money The Heriot for the Tenant that died and out of his goods the Relief for the Tenant
every feodal Lord and not begun in France 'till Feuds were there made hereditary by Hugh Capet nor in England till William the Conqueror did the like as before appears The reason of it was to preserve the memory of the Tenure and of the duty of the Tenant by making every new Tenant at his entry to recognize the interest of his Lord lest that the Feud being now hereditary and new heirs continually succeeding into it they might by little and little forget their duty and substracting the services deny at last the Tenure it self We see at this day frequent examples of it for by neglecting of doing homage and those services Tenures usually are forgotten and so revolv'd to the King by Ignoramus to the great evil of their posterity that neglect it But the Saxons having only two kind of lands Bocland and Folcland neither of them could be subject unto homage for the Bocland which belong'd properly to their greater Thanes tho' it were hereditary yet was it alodium and libera ab omni seculari gravedine as before is shewed and thereby free from homage And the Folcland being not otherwise granted by the King or his Thanes than at will or for years or for life the tenant of it was not to do any homage for it For Justice Littleton biddeth us note that none shall do homage but such as have an estate in fee simple or fee taile c. For saith he 't is a maxim in law that he which hath an estate but for term of life shall neither do homage nor take homage But admit the Saxons had the ceremony of doing homage among them yet was it not a certain mark of Knights-service for it was usual also in Socage-Tenure And in elder ages as well a personal duty as a praedial that is done to Princes and great Men either by compulsion for subjection or voluntary for their protection without receiving any feud or other grant of land or benefit from them And he or they which in this manner put themselves into the homage of another for protection sake were then called homines sui and said commendare se in manus ejus or commendare se illi and were thereupon sometimes called homines ejus commendati and sometimes commendati without homines as in Doomsday often Tho' we have lost the meaning of the phrase yet we use it even to this day Commend me unto such a man which importeth as much as our new compliment taken up from beyond the Seas let him know that I am his servant See the quotations here annexed and note that tho' the Saxons did as we at this day call their servants and followers homines suos their men yet we no where find the word Tenure or the ceremony of homage among them nor any speech of doing or of respiting homage CHAP. XXI What manner of Fealty among the Saxons SO for Fealty if we shall apply every oath sworn by Servants and Vassals for fidelity to their Lord to belong unto Fealty we may bring it from that which Abraham imposed upon his servant put thy hand under my thigh and swear c. For the Saxons abounded with oaths in this kind following therein their Ancestors the Germans who as Tacitus saith took praecipuum Sacramentum a principal oath to defend the Lord of the Territory under whom they lived and to ascribe their own valour to his glory So likewise the homines commendati before mention'd yea the famuli ministeriales and houshold servants of Noble persons were in ancient times and within the memory of our fathers sworn to be faithful to their Lords These and such other were anciently the oaths of Fealty but illud postremo observandum saith Bignonius a learned French-man of the King 's great Council fidelitatem hodie quidem feudi causa tantum praestari shewing farther that Fealty was first made to Princes by the Commendati and Fideles without any feud given unto them and that the Princes afterwards did many times grant unto them feuda vacantia as to their servants but whether the oath of fealty were so brought in upon feodal tenants or were in use before he doth not determine In the mean time it hereby appeareth that fealty in those days was personal as well as feodal or praedial which imposeth a necessity upon them of the contrary part in the Report that if they meet with fealty among the Saxons they must shew it to be feodal and not personal for otherwise it maintaineth not their assertion I will help them with a pattern of fealty in those times where Oswald Bishop of Worcester granting the lands of his Bishoprick to many and sundry persons for three lives reserv'd a multitude of services to be done by them and bound them to swear That as long as they held those lands they should continue in the commandments of the Bishop with all subjection I take this to be an oath of Fealty but we must consider whether it be personal or praedial If personal it nothing then concerneth Tenures and consequently not our question If praedial then must it be inherent to the land which here it seemeth not to be but to arise by way of contract And being praedial must either be feodal as for land holden by Knight-service or Colonical as for lands in Socage If we say it is feodal then must there be homage also as well as fealty for homage is inseperable from a feud by Knight-service but the estates here granted by Oswald being no greater than for life the Grantees must not as we have shewed either make or take homage And being lastly but Colonical or in Socage it is no fruit of a Tenure in Capite by Knight-service nor belonging therefore to our question So that if fealty be found among the Saxons yet can it not be found to be a fruit of Knight-service in Capite as the Report pretendeth it See Fidelitas in my Glossary CHAP. XXII No Escuage among the Saxons What in the Empire THe word Scutagium and that of Escuage is of such novelty beyond the Seas as I find it not among the feudists no not among the French or Normans themselves much less among the Saxons Yet I meet with an ancient law in the Novella of Constantine Porphyrogenita Emperour of Greece in the year 780. that gives a specimen of it tho' not the name Quaedam esse praedia militaria quibus cohaereat onus Militiae ita ut possessorem necesse sit se ad militiam comparare domino indicante delectum vel si nolit aut non possit se ad delectum exhibere certam eo nomine pecuniam fisco dependere quae feudorum omnium lex est c. This tells us that there were certain lands to which the burden of warfare was so adherent that every owner of them was tyed upon summons made by his Lord to make his appearance therein or else to pay certain money by way
that none should be put to further trouble unless the King 's own necessity or the common good of the Kingdom required it Therefore the Bishops Earls Sheriffs Heretoches or Marshals of Armies Trithingreves Leidgreves Lieutenants Hundredors Aldermen Magistrates Reves Barons Vavasors Thungreves and other Lords of land must be all diligently attending at these Assemblies lest that the lewdness of offenders the misdemeanor Gravionum i. of Sheriffs and the ordinary corruption of Judges escaping unpunished make a miserable spoil of the people First let the laws of true Christianity which we call the Ecclesiastical be fully executed with due satisfaction then let the pleas concerning the King be dealt with and lastly those between party and party and whomsoever the Church-Synod shall find at variance let them either make an accord between them in love or sequester them by their sentence of excommunication c. Whereby it appeareth that Ecclesiastical causes were at that time under the cognizance of this Court But I take them to be such Ecclesiastical causes as were grounded upon the Ecclesiastical laws made by the Kings themselves for the government of the Church for many such there were almost in every King's time and not for matters rising out of the Roman Canons which haply were determinable only before the Bishop and his Ministers To proceed Before they entered into any causes as it is commanded in the Laws of Canutus which we mentioned par 2. ca. 17. the Bishop to use the term of our time which from hence taketh the original gave a solemn charge unto the people touching Ecclesiastical matters opening unto them the rights and reverence of the Church and their duty therein towards God and the King according to the word of God and Divinity Then the Alderman in like manner related unto them the Laws of the land and their duty towards God the King and Common-wealth according to the rule and tenure thereof Of all which because I find a notable precedent in a Synodal Edict made by Carolus Calvus Emperour and King of France in Concil Carissiaco An. Dom. 856. I will here add it not to shew that our Saxons took their form of government from the French but that both the French and they as brethren descending from one parent the German kept the rights and laws of their natural Country Episcopi quinque in suis parochiis Missi in illorum Missaticis Comitesque in eorum Comitatibus pariter placita teneant quo omnes Reipub. Ministri Vassi Dominici omnesque quicunque vel quorumcunque homines in iisdem parochiis Comitatibus sine ulla personaram acceptione excusatione aut dilatione conveniant c. That is The Bishops in their parishes or Diocesses and the Justices Itinerant or Aldermen in their Circuits and the Earls in their Counties shall hold their pleas together whereunto all Ministers and Officers of the Common-wealth all the King's Barons and all other whatsoever they be or whose Tenants soever they be within the same parishes or Counties without any respect of persons excuse or delay shall assemble together And the Bishop of that parish or Diocess having briefly noted sentences touching the matter out of the Evangelists Apostles and Prophets shall read them to the people and also the decrees Apostolick and Canons of the Church and in open and plain terms shall instruct them all what manner and how great a sin it is to violate or spoil the Church and what and how great pennance and what merciless and severe punishment it requireth with other accustomed necessary and profitable admonishments The Aldermen also or Justices shall note down such sentences of law as they call to mind and shall publish unto them the Constitutions of us and our predecessors Kings and Emperours gathered together touching this matter And the Bishops by the Authority of God and the Apostles and the Aldermen or Justices and Earls under the penalty of the King's Laws shall with all the care they can prohibit every man of the Kingdom from making any prey or spoil of the Church c. OF PARLIAMENTS WHEN States are departed from their original Constitution and that original by tract of time worn out of memory the succeeding Ages viewing what is past by the present conceive the former to have been like to that they live in and framing thereupon erroneous propositions do likewise make thereon erroneous inferences and Conclusions I would not pry too boldly into this ark of secrets but having seen more Parliaments miscarry yea suffer shipwrack within these sixteen years past than in many hundred heretofore I desire for my understanding's sake to take a view of the beginning and nature of Parliaments not meddling with them of our time which may displease both Court and Country but with those of old which now are like the siege of Troy matters only of story and discourse Because none shall go beyond me in this argument I will begin with the foundation of Kingdoms which of necessity must be more ancient than Parliaments for that a Parliament is the grand Council of the Kingdom assembled at the commandment of the King for advice in matters of State Our first labour is then to see what this Grand-Council was originally It is confest on all hands that the King is universal Lord of his whole Territories and that no man possesseth any part thereof but deriv'd from him either mediately or immediately This derivation thus proceeded The King in the beginning divided his whole territory into two parts one to be manured by his own Tenants and Husbandmen then call'd Socmen For the Kings of England us'd in those days to stock their grounds themselves like the Kings of Israel and by the profits thereof especially to maintain their Hospitality their Court and Estate having in every Mannour Officers and Servants for that purpose This part was Sacrum Patrimonium the inseperable inheritance of the Crown call'd in Doomsday Terra Regis and in Law the Ancient Demaine And because it belong'd to the husbandry of the King all that manur'd or held any part of this land were said to be Tenants in Socage and might not be drawn into the wars of which nature as touching their Tenure they continue at this day The other part of his whole territory he portioned out to Military men which tho' the other was the more profitable yet this was always held for the more honourable and therefore so divided this among his Nobles and chief servants and followers for supportation in his wars and Royal Estate To some in greater measure to others in less according to their merit and qualities Provinces to Dukes Counties to Earls Castles and Signiories unto Barons rendring unto him not ex pacto vel condicto for that was but cautela superabundans but of common right and by the Law of Nations for so I may term the Feodal-law then to be in our Western Orb all Feodal duties and services due from the Donees and their
the others lost their priviledge and came to be Term-days I cannot find it sufficeth that Custome hath repealed them by confession of the Canonists Yet it seemeth to me there is matter for it in the Constitutions of our Church under Islepe Arch-bishop of Canterbury in the time of Edward III. For tho' many ancient Laws and the Decretals of Gregory IX had ordained Judicialem strepitum diebus conquiescere feriatis yet in a Synod then holden wherein all the holy-days are appointed and particularly recited no restraint of Judicature or Forensis strepitus is imposed but a cessation only ab universis servilibus operibus etiam Reipublicae utilibus Which tho' it be in the phrase that God himself useth touching many great Feasts viz. Omne servile opus non facietis in iis yet it is not in that wherein he instituteth the seventh day to be the Sabbath Non facies omne opus in eo without servile Thou shalt do no manner of work therein Now the Act of Judicature and of hearing and determining Controversies is not opus servile but honoratum plane Regium and so not within the prohibition of this our Canon which being the latter seemeth to qualifie all the former Yea the Canonists and Casuists themselves not only expound opus servile of corporal and mechanick labour but admit twenty six several cases where even in that very kind dispensation lieth against the Canons and by much more reason then with this in question It may be said that this Canon consequently giveth liberty to hold plea and Courts upon other Festivals in the Vacations I confess that so it seemeth but this Canon hath no power to alter the bounds and course of the Terms which before were settled by the Statutes of the Land so that in that point it wrought nothing But here ariseth another question how it chanceth that the Courts sit in Easter-Term upon the Rogation-days it being expresly forbidden by the Council of Medard and by the intention of divers other Constitutions It seemeth that it never was so used in England or at least not for many ages especially since Gregory IX insomuch that among the days wherein he prohibiteth Forensem strepitum clamourous pleading c. he nameth them not And tho' he did yet the Glossographers say that a Nation may by Custom erect a Feast that is not commanded by the Canons of the Church Et eodem modo posset ex consuetudine introduci quod aliqua quae sunt de praecepto non essent de praecepto sicut de tribus diebus Rogationum c. To be short I find no such priviledge for them in our Courts as that they should be exempt from suits tho' we admit them other Church rites and ceremonies We must now if we can shew why the Courts sitting upon so many Ferial and holy-days do forbear to sit upon some others which before I mention'd the Purification Ascension St. John Baptist All-Saints c. For in the Synod under Islepe before mention'd no prerogative is given to them above the rest that fall in the Terms as namely St. Mark and St. Philip and Jacob when they do fall in Easter-Term St. Peter in Trinity-Term St. Luke and SS Simon and Jude in Michaelmass-Term It may be said that although the Synod did only prohibit Opera servilia to be done on Festival-days as the offence most in use at that time yet did it not give licence to do any Act that was formerly prohibited by any Law or Canon And therefore if by colour thereof or any former use which is like enough the Courts did sit on lesser Festivals yet they never did it on the greater among which as majoris cautelae gratia those Opera servilia are there also prohibited to be done on Easter-day Pentecost and the Sunday it self Let us then see which are the greater Feasts and by what merit they obtain the priviledge that the Courts of Justice sit not on them As for Sunday we shall not need to speak of it being canonized by God himself As for Easter and Whitsunday they fall not in the Terms yet I find a Parliament held or at least begun on Whitsunday But touching Feasts in general it is to be understood that the Canonists and such as write De Divinis Officiis divide them into three sorts viz. Festa in totum duplicia simpliciter duplicia semiduplicia And they call them duplicia or double Feasts for that all or some parts of the service on those days were begun Voce Duplici that is by two singing-men whereas on other days all was done by one Our Cathedral Churches do yet observe it I mean not to stay upon it look the Rationale which Feasts were of every of these kinds The ordinary Apostles were of the last and therefore our Courts made bold with them But the Purification Ascension St. John Baptist with some others that fall not in the Term were of the first and because of this and some other prerogatives were also called Festa Majora Festa Principalia dies novem Lectionum ordinarily double Feasts and Grand days Mention is made of them in an Ordinance 8. Edw. III. That Writs were ordained to the Bishops to accurse all and every of the perturbers of the Church c. every Sunday and double Feast c. But we must needs shew why they were called Dies novem Lectionum for so our old Pica de Sarum styleth them and therein lyeth their greatest priviledge After the Arian Heresie against the Trinity was by the Fathers of that time most powerfully confuted and suppressed the Church in memory of that most blessed victory and for better establishing of the Orthodox Faith in that point did ordain that upon divers Festival-days in the year a particular Lesson touching the nature of the Trinity besides the other eight should be read in their service with rejoycing and thanksgiving to God for suppressing that horrible Heresie And for the greater solemnity some Bishop or the chiefest Clergy-man present did perform that duty Thus came these days to their styles aforesaid and to be honoured with extraordinary Musick Church-service Robes Apparel Feasting c. with a particular exemption from Law-Tryals amongst the Normans who therefore kept them the more respectively here in England Festa enim Trinitatis saith Belethus digniori cultu sunt celebrandi In France they have two sorts of Grand days both differing from ours First they call them Les Grand jours wherein an extraordinary Sessions is holden in any Circuit by virtue of the King's Commission directed to certain Judges of Parliament Secondly those in which the Peers of France hold once or twice a year their Courts of Haught Justice all other Courts being in the mean time silent See touching these Loyseau De Seigneures To come back to England and our own Grand days I see some difference in accounting of them
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
of Peace between their Neighbours Congratulations Embassages and such like Viand But what moves you to let slip King John Edward II. Richard II. Henry VI. and Richard III. Selv. Not for that they were free from foreign Expences which is not possible for it oppressed them all but for that most of them omitted such necessary charge as in policy they ought to have undergone both for strengthening themselves with Friends and weakning their suspected Enemies such as when occasion serv'd were like to do them damage For if Edw. III. had not by this means fortify'd himself with the alliance and friendship of the noble Knight Sir John of Henault the Dukes of Brabant and Gelderland the Arch-bishop of Colein the Marquess Gulâ—ck Sir Arnold de Baquetien the Lord Walkenbargh and others and also greatly impaiâ—'d the power of the French King by winning the Flemings from the obedience of the Earl of Flanders his assured friend and by procuring the stay of much of the aid by him expected out of the Empire Scotland and other places he had not only fail'd in his French attempts but also put his Kingdom of England in hazard by the Scots who were sure of all the help and backing that France could any way afford them So had it not been for the aid and friendship of the French King the Earls of Bullogne St. Paul the Gascoines and other foreigners Henry III. had been bereav'd of his Kingdom by his own Subjects which notwithstanding he held with great difficulty So the rest likewise But on the contrary part the others whom you nam'd neglecting this right precious tho' costly ground work not only wanted it when need required but with the ruine of their People State and Kingdom lost their Crown and dearest lives by the infernal hands of cursed Murtherers their rebellious Subjects getting once the better hand Viand But Edw. II. used means also to have procured the amity and assistance of divers foreigners as the Duke of Britain the Lord Biskey the Lady Biskey Governess of the King of Castile and Leon James King of Arragon and others And Rich. II. sought the like of the hands of the French King and so the rest likewise of others Selv. True not examining the dependencies of time present they imagined in their prosperity that things to come would ever have good success and therefore deferr'd still the doing of it till extream necessity compell'd them to it and then their Estates being utterly desperate and ruinated no man willingly would lend them aid or ear Knowing that when the fury of the disease hath once possessed the vital places it is then too late to apply Physick This reason made the Princes you speak of to refuse King Edward II. And as for Richard II. when the French King saw how he was entangled and overladen with dangerous Rebellions and Divisions of his Nobles and Commons at home war in Scotland Flanders Spain Portugal Ireland sending forces against the Infidels releiving the expell'd King of Armenia and many other such turbulent affairs he then thought and truly that there was more to be gotten by being his Enemy than his Friend and taking advantage of that opportunity defied him also and warr'd upon him So that King Richard wholly void of aid and hope fell into the hands of his proud Barons and lost both Crown and Life In like miserable sort stood the case with Henry VI. For being once descended to the lowest exigent who almost durst releive him or any of the rest for fear as our Proverb saith of pulling an old house upon his own head Whereas if in their flourishing estate they had employ'd their treasure to encounter future perils being yet afar off they had no doubt securely held their Crowns and perhaps without much business illuded all the practices of their Enemies drawing nearer Had Richard II. at the time when being in France he bestow'd the value of 10000l. in gifts upon the fickle French King stay'd there and employ'd the other 300000. and odd marks by him also wasted at that bravery in gaining the amity of his neighbour Princes to serve his turn when need should be it is not unlikely but afterwards it might have sav'd all the rest For it is a good rule that is taught us in the art of Fencing to break the blow or thrust that might endanger us as far from our Bodies as we can For as I said before when things be drawn to the last period the time of help is past according to the saying of Hecuba to her betray'd husband being about to arm himself Quae mens tam dira miserrime conjux Impulit his cingi telis aut quo ruis inquit Non tali auxilio nec defensoribus istis Tempus eget non si ipse meus nunc afforet Hector Most Royal therefore are the Providence and Expences of her Excellent Majesty who as it were with Linceus eyes looking into the lowest secrets of the practices of her Enemies hath not only for these 36. years utterly cancell'd and made them frustrate but foreseeing also what mighty consequences may depend on mean beginnings omitteth no diligence to defeat them whilst they are yet in the shell or so to environ the mark whereat they are levell'd as being hatch'd they shall be able to perform nothing Knowing it to be far greater wisdom to preserve the body whilst it is sound from all infirmities than by admitting a dangerous disease to gain the credit of an excellent cure And tho' mony be the Blood wherein the Life of all Common-wealths as in a nest is cherisht yet nature teacheth that to preserve health and cure an impostumate disease we ought to let blood out and that sometimes in great abundance And as Themistocles said Pecunia nervus belli mony is also the sinews of war and look how necessary Peace is in a Common-wealth so necessary is War to beget Peace for Peace is Belli filia the daughter of war But to return to our matter lest we fare like the unskilful hounds that undertake a fresh hare when they have hunted the first till she be almost spent It appeareth by that that hath been said that a main Port by which our treasure hath been vented from us heretofore is now shut God be thank'd and that instead thereof no new is opened So that thereby our store must needs remain better by us than it hath and we by consequence must be the richer It is also to be added that whereas in former times much of the treasure that came into the land was buried up in superstitious employments as about Images Shrines Tabernacles Copes Vestiments Altar-cloaths Crucifixes Candlesticks c. by means whereof the Common-wealth became no whit richer than if that part so employed had never come within the Land Now we do not only retain that Idolatrous charge still in our purses which makes us much the wealthier but the rest also which for many hundred years together was so employ'd is
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
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
that succeeded and out of his purse The Heriot whether the son or heir enjoy'd the land or not the Relief by none but him only that obtain'd the land in succession The Heriot whether the land were fallen into the Lord's hands or not the Relief in old time not unless it were fallen and lay destitute of a Tenant whose taking of it up out of the Lord's hands was in that sense called Relevium or Relevatio a taking up of that was fallen according to the French word Reliefe Bracton well observ'd the difference saying Fit quaedam praestatio quae non dicitur Relevium sed quasi sicut Heriotum quasi loco Relevii quod dari debet aliquando ante sacramentum fidelitatis aliquando post Hotoman saith Relevium dicitur honorarium munus quod novus Vassallus Patrono introitus causa largitur quasi morte alterius Vassalli vel alio quo casu feudum ceciderit quod jam à novo sublevetur Nov. Leo. 13. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 nominat I stand the longer herein for that not only the Report but even Doomsday it self and generally all the ancient Monkish writers have confounded Heriots and Releifs Yet might I have saved all this labour for nothing can make the difference more manifest than that we often see both of them are together issuing out of the same land But when all is done neither is Heriot nor Releif any badge of land holden by Knight's-service or in Capite for both of them are found in lands of ordinary Socage Yet I confess that Bracton saith de soccagio non datur Relevium and a little before de soccagio non competit domino Capitali Custodia nec homagium ubi nulla Custodia nullum Relevium sed è contra But this serveth my turn very well for that they in the Report having fail'd to prove that Releifs were in use in the Saxons time whereof they affirm'd they had full testimony it now inferreth on my behalf that if Releifs and Wardships were not in use among the Saxons that then also Tenure by Knight-service was not with them Besides all this the Heriot was a certain duty and settled by Law the Relief so various and uncertain as the Lords exacted what they listed for it when it fell into their hands constraining the heir of the Tenant as it were to make a new purchase of their Feud whereupon the Feudists called this Releif not only Renovatio and Restauratio feudi in Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 turning or bringing back of the Feud to the former condition or proper nature of it but also Redemptio a ransoming of it out of the Lord's hands That it thus stood with us in England by and by after the Conquest appears by that we have shewed before out of the Magna Charta of Henry I. CHAP. XIX No Fines for Licence of Alienation TOuching Fines for Licence of Alienation it is not said what kind of Tenants among the Saxons did pay them nor for what kind of land they were paid The Thane-land hereditary is apparently discharg'd thereof by the ordinary words of their Charters before mention'd where 't is said that the owners of lands may give and bequeath them cuicunque voluerint and that freely ab omni munduali obstaculo Doomsday also as we here shewed doth testifie as much and so doth the very word Alodium which the ancient Authors attribute to these lands So that the Thane-lands doubtless were free both from the Fine and Licence But as touching Folcland and land holden at will of the Lord tho' continued in ancient time to their children after the manner of Copy-holds it is no question but that they might both have Licence for aliening such lands and also pay consideration for it as our Copy-holders do at this day I find that one Brictrick in the time of King Etheldred about the year 984. bequeath'd legacies of good value unto his Lord's wife to intreat her Husband that this Brictrick's Will whereby he had devised many lands and goods to Monasteries and divers men might stand And that Thola the widow of Vrke a Thane of Edward the Confessor obtain'd licence from the same King Edward that she might devise both her lands and goods to the Monastery of Abbotsbury But of what nature these Licences were whether to alienate the land or to make a Will or to give the land to Monasteries as in Mortmain I cannot determine If they only intended alienation then I understand them only of Lands holden according to the custom of the time at will of the Lord or Folcland Yet in that Thola's Licence was as well to bequeath her goods expresly as her lands the Licence seemeth to be given therefore to make a Will which no man then could do if not a Thane Quaere But howsoever it be expounded it must not be extended to the Thane-lands or land hereditary for the reasons before alledged And as touching Fines for Licence of Alienation after our manner which the Report suggesteth they could not doubtless be in use among the Saxons for there are not found as I suppose here among us before the time of Edward I. and not established afterwards 'till 1. Edw. III. where the King granteth that from thenceforth lands holden in Chiefe should not be seized as forfeited which formerly they were for Alienation without Licence but that a reasonable Fine should be taken for the same See the Statute CHAP. XX. No Feodal Homage among the Saxons OUr word Man and homo in Latin have for many ages in old time been used by the German and Western Nations for a Servant or Vassal And from thence hominium and vassaticum afterwards homagium was likewise used for hominem agere to do the office or duty of a servant not to signifie Manhood as some expound it and so also Vassalagium But by little and little all these latter words have been restrain'd to note no more than our ceremonial homage belonging properly unto Tenures which I met not with among our Saxons nor any shew thereof in former ages unless we shall fancy that the Devil had it in his eye when he offered to give unto our Saviour all the Kingdoms of the world if he would fall down and worship him For here he maketh himself as Capital Lord our Saviour as the Feodal Tenant the Kingdoms of the world to be the Feud the falling or kneeling down to be the homage and the worshipping of him consisting as the Feodists expound it in six rules of service to be the Fealty Pardon me this idleness but from such missemblances rise many errors Homage as we understand it in our Law is of two sorts one more ancient than the other called homagium ligeum as due unto the King in respect of Soveraignty and so done more Francico to King Pipin by Tassilo Duke of Bavaria about the year 756. The other homagium feodale or praediale belonging to