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
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
103. Camden in Bark-shire Selden in Eadmer p. 154. That Wardships were then in use and not brought in by the Normans as Camden in his Britt 178. Nor by Hen. III. as Randolph Higden in his Polichronicon and others not understanding him would perswade Vid. Seldens Notes on Fortescue 51. Among the priviledges granted by Edward the Confessor to the Cinque-ports we meet with this that their heirs shall shall not be in Ward Lambards Perambulat of Kent 101. And in the Customs of Kent which are in the Magna Charta of Tottels Edition and in Lambards Perambulation There is a Rule for the Wardship of the heir in Gavelkind and that he shall not be marryed by the Lord. And those Customs say of themselves that they were Devant le Conquest en le Conquest For the Antiquity of Wardships in England and Scotland see also Hect. Boet. lib. 11. Buchanan rerum Scot. lib. 6. and the Laws of Malcolm II. which prove the Antiquity of Wardships in Scotland and therefore in England before the Norman Conquest for in those times it is probable the Laws of both Nations did not much differ as for the times after it appears they did not by comparing their Regiam Majestatem and our Glanvil Neither is the bare conjecture of Sir Henry Spelman sufficient to take away the force of those Laws Vid. Spelman Glossar verbo Feudum Upon this amongst other reasons they did conclude That upon consideration of the Authority given and Grant thereupon made the reservation of the Tenure cannot be said to be Aliud So. a separate and distinct thing from the Authority of Granting the Land but rather included within it And that the Reservation of the Tenure though it be not Ipsa concessio the Grant it self yet it is Modus concessionis and a part of the Grant and that therefore the Authority being not pursued in that the whole Grant is void These were their Arguments for Tenures among the Saxons as they are set down in the Case it self drawn up and Printed by Order of the Lord Deputie Sir Henry Spelman has severally consider'd both the Truth and Force of them not strictly confining himself to their Reasons and Reflections but taking occasion from thence to write a very elaborate Treatise of the Nature and Original of Feuds and Tenures The two discourses Of the ancient Government of England and Of Parliaments are both of them publisht from the Original Manuscripts in the hands of Mr. Charles Spelman of Congham in Norfolk son of Sir John Spelman and Grandson to Sir Henry That concerning the Original of the four Terms was publisht in the Year 1684. from a very uncorrect and imperfect Copy which probably had been taken when the Author first wrote the Discourse The Original Manuscript with very many Additions and Corrections that Sir Henry afterwards made in it is preserv'd in the Bodleian Library from whence the Work is now printed entire The Apology for Arch-bishop Abbot by an unknown Author and the Answer to it by Sir Henry Spelman are in the posâ—ession of Mr. Henry Spelman son to Mr. Clement Spelman who was Sir Henry's youngest son both written with our Author 's own hand To this Answer he refers us in his Glossary under the title Muta Canum The Letters relating to the same subject are in a Collection of Original Papers and Records deliver'd to Mr. Wharton by Arch-bishop Sancroft and now in the hands of Mr. Châ—â—wel The Treatise of the Original of Testaments and Wills and his Icenia or the description of Norfolk are both publisht from the Author 's own Copies in the Bodleian Library The latter of these is not so compleat as he had intended to make it The Catalogue of the Earls Marshal of England and the Dissertation de Milite were evidently design'd for a part of his Glossary as appears from the manner of the Composition and from several passages in them But when the Papers were deliver'd to Sir William Dugdale for the publication of the second part of that Work these two it seems had been mislaid The account of the Earls Marshal is I fear imperfect in some places but will however be of good use towards a more accurate Catalogue of them The succession of the Family of Sharnburn is a peice of Antiquity that was exceedingly valu'd by Sir Henry Spelman as appears both from his Recommendation and from the use that he has made of it in some part of his Works Having met with a Copy in Mr. Ashmole's Museum at Oxford I thought it might not be improper to publish it among his Remains The Dialogue concerning the Coin of the Kingdom and the Catalogue of the Places of the Arch-bishops and Bishops of this Realm are in the possession of Mr. Charles Spelman The first is written in a hand not unlike Sir Henry Spelman's only somewhat less which if it was really his may have been occasion'd by his writing it while he was young For it appears to have been compos'd in the 36. of Elizabeth when Sir Henry was but about thirty three years of age The Catalogue was drawn up in the time of King James I. for the use of the then Arch-bishop of Canterbury as I gather from those words in the beginning written in a different hand Pro Domino Archiepiscopo Cantuar. I dare not positively affirm that either of these is Sir Henry Spelman's but the finding them among his other Papers and the accurate knowledge of our English affairs which appears in both incline me to believe that he was really the Author of them and for that reason they are printed upon this occasion This is all I have to say concerning the Posthumous Works of Sir Henry Spelman which I was willing to make publick for the Author's reputation and the service of the World THE LIFE OF Sir Henry Spelman Kt. HENRY SPELMAN was born at Congham a Town in Norfolk near Lynn He was descended from an ancient Family of that name who about Henry the III's time were seated in Hampshire but afterwards remov'd into Suffolk and from thence into Norfolk about 200. years since His Father's name was Henry Spelman Esq as I learn from a Pedigree of the Family under Sir Henry's own hand and not John as a late Writer has told us His Mother was Frances daughter of William Sanders of Ewel in Surrey Esq After his Education at School he was sent to Trinity Colledge in Cambridge before he was quite 15. years of Age and indeed as he himself complains before he was ripe for the University He had not stay'd there two years and a half but his Father dy'd and he was call'd home to assist his Mother in the management of the Family Afterwards when he came into the World and betook himself to Writing and the study of our Laws he found the want of University Education and condoles his misfortune in that particular in a Letter to his friend Mr. Richard
Reliquiae Spelmannianae THE POSTHUMOUS WORKS OF Sir HENRY SPELMAN Kt. Relating to the LAWS and ANTIQUITIES OF ENGLAND Publish'd from the ORIGINAL MANUSCRIPTS With the LIFE of the AUTHOR Sine dubio domus Jurisconsulti est totius oraculum Civitatis Cicero OXFORD Printed at the THEATER for Awnsham and John Churchill at the Black-Swan in Pater-Noster-Row LONDON 1698. Imprimatur JOH MEARE VICE-CAN OXON Jan. 17. 1698. TO THE Most Reverend Father in God THOMAS LORD ARCH-BISHOP OF CANTERBURY PRIMATE of All ENGLAND And METROPOLITAN And one of his Majesty's most Honourable Privy Council MY LORD I BEG leave to lay before your Grace these Posthumous Discourses of Sir Henry Spelman promising them a favourable reception both for their own worth and for the sake of their Author He was a Person endow'd with those excellent Qualities which never fail to recommend others to your Grace's good opinion and esteem A Gentleman of great Learning and a hearty Promoter and Encourager of it In his Temper Calm and Sedate and in his Writings Grave and Inoffensive a true lover of the Establisht Church and a zealous maintainer of her Rights and Privileges In which respect the Clergy of this Nation were more particularly engag'd to Him because being a Lay-man and so not lyable to the suspicion of Prejudice or Interest his Reasonings carry'd in them a greater weight and authority than if they had come from one of their own Order I might add as some sort of excuse for this Trouble that He had the honour to be particularly respected by two of your Grace's Predecessors and some of his Posthumous Works by a third Arch-bishop Abbot and his immediate Successor were the chief Encouragers of the First Volume of his Councils and after his death the Second Part of his Glossary was publisht by the procurement of Arch-bishop Sheldon So that these Papers have a kind of hereditary right to your Grace's Protection All the share that I have in this Work is the handing it into the World and to make the first Present to your Grace would be no more than a decent regard to the Eminence of your Station though I had no particular obligation to do it But in my Circumstances I should think my self very ungrateful if enjoying so much Happiness under your Grace's Patronage I should omit any opportunity of expressing my Thankfulness for it Especially since such small Acknowledgements as this are the only Returns that I can ever hope to make for the Encouragement which You daily afford to Your GRACE'S most obliged and most dutiful Servant EDMUND GIBSON THE PREFACE I Shall not make any Apologie for the publication of these Treatises They seem'd to me to be very useful towards a right understanding of the Laws and Antiquities of England and I hope they will appear so to others too Nor need I endeavour to recommend them to the world any otherwise than by shewing them to be the genuine Labours of Sir H. Spelman whose Learning Accuracy and Integrity are sufficiently known The first of them concerning Feuds and Tenures in England was written in the Year 1639. and is printed from a fair Copy in the Bodleian Library corrected with Sir Henry Spelman's own hand The Occasion of writing it was the Great Case of Defective Titles in Ireland as may be gathered in some measure from the hints that our Author has given us but is much more evident from the Case it self printed afterwards by order of Thomas Viscount Wentworth the then Lord Deputie The Grounds thereof with the Pleadings and Resolutions so far as they concern the Original of Tenures were in short thus The several Mannours and Estates within the Counties of Roscomon Sligo Mayo and Gallway in the Kingdom of Ireland being unsettl d as to their Titles King James I. by Commission under the Great Seal dated the 2d day of March in the 4th Year of his Reign did authorize certain Commissioners by Letters Patents to make Grants of the said Lands and Mannours to the respective Owners Whereupon several Letters Patents to that effect passed under his Majesties Great Seal by virtue of the said Commission for the strengthening of Titles that might otherwise seem defective And afterwards in the Reign of King Charles I. upon an Enquirie into his Majestie 's Title to the Countie of Mayo there was an Act of State publisht commanding all those who held any Lands in that County by Letters Patents from the Crown to produce them or the Enrollment thereof before the Lord Deputie and Council by a certain day To the end that they might be secur'd in the quiet possession of their Estates in case the said Letters were allow'd by that Board to be good and effectual in Law In pursuance of this Order several Letters Patents were produc'd and particularly the Lord Viscount Dillon's which last upon the perusal and consideration thereof by his Majestie 's Council were thought to be void in Law And therefore it was order'd by the Lord Deputie and Council that the doubt arising upon the Letters Patents should be drawn up into a Case and that Case to be openly argu'd at the Council-Board The Case was drawn up in these words King James by Commission under the Great Seal dated the second day of March in the fourth year of his Reign did authorize certain Commissioners to grant the Mannour of Dale by Letters Patents under the Great Seal of this Kingdom to A. and his heirs and there is no direction given in the said Commission touching the Tenure to be reserv'd There are Letters Patents by colour of the said Commission pass'd unto A. and his heirs to hold by Knights Service as of his Majesties Castle of Dublin Here it was agreed on all hands that the Letters Patents were void as to the Tenure and that the Commissioners had acted beyond their Commission in reserving a mean Tenure to the prejudice of the King when they ought either to have reserv'd an express Tenure by Knight's Service in Capite or have mention'd no Tenure at all but have left the Law to imply a Tenure in Capite The question therefore was Whether the deficiency of the Tenure did so far affect the Grant as wholly to destroy the Letters Patents Or Whether the Letters Patents might not be good as to the Land and void only as to the Tenure The Case was argu'd several days by Counsel on both sides and was afterwards deliver'd up to the Judges who were requir'd by the Lord Deputie and Council to consider of it and to return their Resolution But upon private Conference not agreeing in their Opinions it was thought necessary for publick satisfaction to have it argu'd solemnly by them all which was accordingly done And when it came to be debated whether the reservation of a Tenure so different from that intended and warranted by the Commission could make void the whole Grant this happen'd to lead them to a more general Enquirie What the reservation of a Tenure is
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
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
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
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
of a Fine as was common in all cases of Feodal Tenures This hath some shew of our Escuage and might well have taken that name from the manner of summons used in the Empire which was by erecting a post or pillar and hanging a Shield at the top thereof an Herald proclaiming that all who held in this manner should at such a day attend the Emperour in his voyage to Rome for taking the Crown of Italy or King of Romans which the Ligurine Poet thus expresseth Ligno suspenditur alte Erecto Clypeus tunc Praeco regius omnes Convocat a dominis feudalia jura tenentes c. as we have shew'd in our Glossary verbo Feudum He useth Clypeus for a Shield instead of Scutum and from this shield I say it might well be called Scutagium as also from the service performed in it cum hasta scuto Yet this summons was not called Schiltbannum but Heribannum that is indictio exercitus not indictio sâ—uti But to keep nearer the matter First our Saxons neither used the name nor the rules of the Norman Escuage for they called their going to war upon legal summons firdfare and utfare in Latin Expeditionem and Profectionem Secondly they were not tyed to any definite time of abode as for fourty days or more or less but as the law saith sÆ¿a a ðon ðearf sy for gemeneâ—â—â—re neode so as need shall require for common necessity Thirdly the mulct or forfeiture that the Tenant in Escuage incurred for not going forth upon that summons was uncertain among the Normans and us 'till the Parliament assign'd it but among the Saxons he that offended in Ferdwite that is in not going forth in the Expedition was certainly fin'd at 120 Fourthly whereas every Lord among us had the fine assess'd by Parliament of his own Tenant for the Lands holden of himself the King among the Saxons had the fine aforesaid of every delinquent whose Tenant or follower soever he were by all the Laws of the kingdom that is to say by the West-Saxon Law by the Mercian and by the Dane Law tho' otherwise they differ'd in their Heriots and many particular customs So that to talk of Escuage among the Saxons is without all colour or probability as I take it CHAP. XXIII No Feodal Escheate of Hereditary Lands among the Saxons EScheats of Eschoeir in French signifieth things coming accidentally as on the by or by chance The Fâ—odists therefore call them Caduca a cadendo and excadentias the black book of the Exchequer Escaetas excidentia and excadentia but among our Saxons I find no word to express them either properly or paraphrastically In our Law they be of two sorts Regal Escheats and Feodal Regal are those obventions and forfeitures which belong generally to Kings by the ancient right of their Crowns and supreme dignity Thus King David gave the lands of Mephibosheth accused of Treason unto Ziba tho' too hastily Feodal are those which accrue to every Feodal Lord as well as to the King by reason of his Seignory and of all the fruits of Tenure none so great as this if we may call it a fruit where the feud or tree it self resulteth back unto the Lord. Let us see therefore if we find any of these Feodal Escheats among the Saxons There is a shrewd text I confess in Canutus his Laws Qui fugiet à domino suo vel socio pro timiditate in expeditione navali vel terrestri perdat omne quod suum est suam ipsius vitam manus mittat dominus ad terram quam ei dederat si terram haereditariam habeat ipsa in manum Regis transeat Here is the appearance of a Tenure of a Feud of a Forfeiture and of an Escheat The Tenure lyeth between the Lord and his fugitive Vassal whom the Saxons and Germans called his Man we his Tenant The Feud in the Land quam dâ—mâ—nus â—i dederat The forfeiture in fugiendo in the Vassals running away And the Esâ—heat in the Lord 's seizing of the land manus mittat dominus in terram quam ei dederat Let the Lord take back the estate which he gave in the temporary feud But for the hereditary land he saith transeat non redeat in manum Regis All this is nothing in our case for I declared in the beginning that our question was fix'd upon such feuds as the Law of England taketh notice of at this day that is of feuds after they were become hereditary and perpetual not of those mention'd by Gerardus Niger which were temporary as at will of the Lord or for years or for life like them here intended by Canutus This very Law observeth the difference and discovereth also that feuds were not hereditary in his time and therefore giveth the feodal land being but a temporary estate back unto the Lord in whom the Reversion was by inheritance as a feodal right but giveth the hereditary Lands unto the King as a Regal Escheat for that there was no mean or intervenient Lord to claim them by any feodal tenure for that the hereditary lands among the Saxons otherwise called Bocland were holden of no body nor subject to any feodal service as we have often declared and could not therefore Escheat unto any feodal Lord. The Kentish custom of the father to the Bough and the son to the Plough suggesteth as much and sheweth also to have been the general use of England till the Conquerour introducing hereditary feuds put upon us therewith these greater feodal servitudes of Wardship Marriage Escheats c. So that the hereditary lands not being feodal in the Saxon's time nor the feodal lands hereditary there could then be no feodal Escheats among them And I take it to be considerable whether the land resumed by the Lord upon his Vassal's running away be properly an Escheat by the Law of Canutus or rather a penalty only impos'd in this particular case CHAP. XXIV Thaneland and Reveland what no marks of Tenure but distinctions of Land-holders THere is yet another assertion rather shewed than proved That the Thani majores or King's Thanes held by personal service of the King's person by Grand Serjanty or Knights-service in Capite And the reason following is that the land so held was in those times called Thane-land as land holden in Socage was called Reveland so frequently in Doomsday Haec terra fuit terra Regis Edwardi Thainland sed postea conversa est in Reveland Coke's Instit § 117. Thus the Report dischargeth it self upon my Lord Coke whose words be these It is to be observ'd that in the book of Doomsday land holden by Knights-service was called Thainland and land holden by Socage was called Reveland I reverence the opinion of that famous Lawyer with admiration but I suppose he speaketh not this ex tripode juridico For it is impossible that it and that which is before deliver'd out of the
times and that they were not made otherwise than for life or three lives for so I find them in the Abby-books And I also suppose that they to whom these lands were granted were the Thani Episcopi Thani Ecclesiae spoken of in Doomsday-book and that the lands themselves were such as in the same book are usually called Thain-lands Ecclesiae Episcopi and Abbatis But I see they were laden with many services which the lands of the King's Thane in respect of his dignity and person were free from Therefore when this very Bishop by another Charter granted tres cassatas three hydes of land in Cungle cuidam Ministro Regis to one of the King's Thanes nam'd Alfwold and to his Mother if she surviv'd during their lives he put no service upon the King's Thane but saith plena glorietur libertate excepta expeditione rata Pontis arcisve constructione the common exception in grants unto the Kings Thanes as before appeareth and yet the services thereby excepted belonged not either to the Bishop or the King himself otherwise than pro bono publico and common necessity After all this I beat still upon the old string that here yet is nothing to prove Wardship or Marriage or as the law then stood a Tenure by Knights-service for we have made it manifest that Expedition and building of Castles and Bridges were no Feodal services nor grew by Tenure And as for these that were tyed to ride and go up and down with their Lord Baraterius an old Feudist saith that a Knights fee may be given so ut Vassallus in diebus Festivis cum uxore Domini ad Ecclesiam vadat and the feudal law it self inferreth as much Lib. 2. Tit. 3. But our Bracton speaking of our Law here in England de Invest feud in his time touching such Tenants calleth them Rodknights alias Radknights Lib. 2. Cap. 35. nu 6. ut siquis debeat equitare cum Domino suo de Manerio in Manerium and saith not that it is Knight-service but that it is a Serjantie and that although such sometimes do Homage yet the Lord shall not have Ward and Marriage Admit notwithstanding that it were Knight-service and that the lands thus holden were Knights Fees during the life of the Tenant yet where is the Wardship Marriage and Releif Who shall undergo these servitudes since the Tenure and all the services are determin'd with the life of the Tenant CHAP. XXVII Inducements to the Conclusion SEeing then that neither the greater Thanes nor the lesser Thanes among the Saxons were subject to the rules of our Knight-service upon whom then if it were in use among them did it lye For as touching the Clergy it is said in the Laws of Edw. the Confessor cap. 11. that the King and the people magis in Ecclesiae confidebant Orationibus quam in Armorum defensionibus And the Report it self confesseth pag. 3. in pede That the possessions of Bishops and Abbots were first made subject to Knight-service in Capite by William the Conqueror in the fourth year of his reign for their lands were held in the times of the Saxons In pura libera eleemosyna free ab omni servitio seculari c. Though this be not true in the latter part being strictly taken for no doubt their lands were subject to the Trinodi necessitati viz. Expeditioni pontis arcisque constructioni as before appeareth yet cometh it very fitly to my purpose for hereby it is evident that if the Trinodis necessitas made no Tenure by Knight-service or in Capite in the Church Lands then neither did it in the Thane-lands as before we have shew'd and then much less in the land of Churles and Husbandmen commonly call'd the Socmanni for it is agreed on all hands that their lands were holden no otherwise than by Socage Therefore if all Kent in the Saxon's time were Gavelkind then could there be no Tenures by Knight-service in all that County For Glanvil Lib. 7. c. 3. telleth us That where the inheritance is divideable among the sons it is Socage And his reason is because that where 't is holden by Knight-service the Primogenitus succedit in toto This Kentish custom was ab initio the general Law of England and of all Nations Jews Greeks Romans and the rest and so continueth even till this day where the Feodal Law hath not altered it which first happen'd here in England when the Normans introducing their Feuds settled the whole inheritance of them upon the eldest son which the ancient Feodal Law it self did not as we before have noted till Feuds were grown perpetual The reason as I take it that begat this alteration was for that while the Feud did descend in Gavelkind to the Sons and Nephews of the Feodatorie the services were suspended till the Lord had chosen which of the Sons he would have for his Tenant and then it was uncertain whether the party chosen would accept of the Feud or not for sometimes there might be reasons to refuse it To return where I left it makes to the proof of all this that has been said and for conclusion seems to be unanswerable that the old inheritance which in the Saxons time belong'd to the Crown called in Doomsday Terra Regis and in the Law books Antient Demesne containing a great part of every County had not any Lands within it or within any Mannor thereof holden by Knight-service For Fitz-Herbert saith that Nul terres sont antient demesne forsque terres tenus en Socage And therefore if the Tenant in ancient Demesne will claim to hold of the Lord by Knights-service it is good cause to remove the Plea because that no Lands holden of a Mannor which is antient Demesne are holden by other services of the Lord than by Socage for the Tenants in antient Demesne are call'd Socmanni that is to say Tenants del carve Angl. le plough Thus far Fitz-Herbert Now if in the Mannors of the King himself there were then no Lands holden by Knight-service throughout all England it will then in all probability follow that there were none likewise among his Subjects in the Saxons time and consequently that our Feudal Law was not introduc'd before the Conquest Mr. Cambden by their own confession is of the same opinion and Mr. Selden himself whom they alledge against me is clearly with me as before I have shew'd If these our three opinions avail nothing we have yet a fourth to strengthen us great Bracton the most learned in our ancient Laws and Customs that hath been in this Kingdom who speaking of Forinsecum servitium as the Genus to these Tenures saith Lib. 2. cap. 16. Nu. 7. fol. 36. a. that it was call'd regale servitium quia spectat ad Dominum Regem non ad alium secundum quod in Conquestu fuit adinventum Here Bracton also refers the Invention to the Conquest but the Report waveth his opinion as well as ours notwithstanding
on these days as by the same phrase in other Laws shall by and by appear which the Gloss also upon this Canon maketh manifest saying In his etiam diebus causae exerceri non debent citing the other Canon here next before recited but adding withal that the Court and Custume of Rome it self doth not keep Vacation from Septuagesima nor as it seemeth in some other of the days And this precedent we follow when Septuagesima and Sexagesima fall in the compass of Hilary-Term CHAP. VI. That our Terms took their Original from the Canon-Law THus we leave the Canon Law and come home to our own Country which out of these and such other forreign Constitutions for many more there are have framed our Terms not by choosing any set portion of the year for them as Polydore Virgil and our Chroniclers ignorantly suggest but by taking up such times for that purpose as the Church and common Necessity for collecting the fruits of the Earth left undisposed of as in that which followeth plainly shall appear CHAP. VII The Constitution of our Saxon Kings in this matter INas one of our ancient Saxon Kings made a very strict Law against working on Sunday And Alured instituted many Festivals but the first that prohibited Juridical proceedings upon such days was Edward the Elder and Guthrun the Dane who in the League between them made about ten years before the Council of Erpford that it may appear we took not all our light from thence did thus ordain Ordel aþas syndon tocÆ¿edon freols dagum rihtfaesten dagum c. We forbid that Ordel and Oaths So they called Law-tryals at that time be used upon Festival and lawful Fasting days c. How far this Law extended appeareth not particularly no doubt to all Festival and Fasting-days then imposed by the Roman Church and such other Provincial as by our Kings and Clergy were here instituted Those which by Alured were appointed to be Festivals are now by this Law made also days of Vacation from Judicial Tryals yet seem they for the most part to be but Semi-Festivals as appointed only to free-men not to bond-men for so his Law declareth viz. The twelve days of Christmass the day wherein Christ overcame the Devil the Anniversary of St. Gregory the seven days afore Easter and the seven days after the day of St. Peter and St. Paul and the whole week before St. Mary in Harvest and the Feast-day of All-Saints But the four Wednesdays in the four Ember weeks are remitted to Bond-men to bestow their work in them as they thought good To come to that which is more perspicuous I find about sixty years after a Canon in our Synod of Eanham under King Ethelred in these words First touching Sunday Dominicae solempnia diei cum summo honore magnopere celebranda sunt nec quicquam in eadem operis agatur servilis Negotia quoque secularia quaestionesque publicae in eadem deponantur die Then commanding the Feast-days of the B. Virgin and of all the Apostles the Fast of the Ember days and of the Friday in every week to be duely kept it proceedeth thus Judicium quippe quod Anglicè Ordeal dicitur juramenta vulgaria festivis temporibus legitimis jejuniis sed ab Adventu Domini usque post Octabas Epiphaniae à Septuagesima usque 15. dies post Pascha minime exerceantur sed sit his temporibus summa pax concordia inter Christianos sicut fieri oportet It is like there were some former Constitutions of our Church to this purpose but either mine eye hath not light upon them or my memory hath deceived me of them CHAP. VIII The Constitution of Canutus more particular CAnutus succeeding shortly by his Danish sword in our English Kingdom not only retained but revived this former Constitution adding after the manner of his zeal two new Festival and Vacation days And Æ¿e forheodað ordal aðas freols dagum ymbren dagum rite faesten dagum fram Adventum domini oþ se eahtoþa dag agan sy ofer tÆ¿elfta daeg c. We forbid Ordal and Oaths on Feast-days and Ember-days and in Lent and set fasting days and from the Advent of our Lord till the eighth day after the twelfth be past And from Septuagesima till fifteen nights after Easter And the Sages have ordained that St. Edward's day shall be Festival over all England on the fifteenth of the Kalends of April and St. Dunstan's on the fourteenth of the Kalends of June and that all Christians as right it is should keep them hallowed and in peace Canutus following the Synod of Eanham setteth down in the Paragraph next before this recited which shall be Festival and which Fasting-days appointing both to be days of Vacation Among the Fasting-days he nameth the Saints Eves and the Fridays but excepteth the Fridays when they happen to be Festival-days and those which come between Easter and Pentecost as also those between Midwinter so they called the Nativity of our Lord and Octabis Epiphaniae So that at this time some Fridays were Law-days and some were not Those in Easter Term with the Eve of Philip and Jacob were and the rest were not The reason of this partiality as I take it was they fasted not at Christmass for joy of Christ's Nativity nor between Easter and Whitsuntide for that Christ continued upon the Earth from his Resurrection till his Ascension And the children of the wedding may not fast so long as the Bridegroom is with them Nor till Whitsuntide for joy of the coming of the Holy Ghost CHAP. IX The Constitution of Edward the Confessor most material SAint Edward the Confessor drew this Constitution of Canutus nearer to the course of our time as a Law in these words Ab Adventu Domini usque ad Octabas Epiphaniae pax Dei sanctae Ecclesiae per omne Regnum similiter à Septuagesima usque ad Octabas Paschae item ab Ascensione Domini usque ad Octabas Pentecostes item omnibus diebus quatuor temporum item omnibus Sabbatis ab hora nona tota die sequenti usque ad diem Lunae item Vigiliis Sanctae Mariae Sancti Michaelis Sancti Johannis Baptistae Apostolorum omnium Sanctorum quorum solennitates a Sacerdotibus Dominicis â—nnunciantur diebus omnium Sanctorum in Kalendis Novembris semper ab hora nona Vigiliarum subsequenti solennitate Item in Parochiis in quibus dedicationis dies observatur item Parochiis Ecclesiarum ubi propria Festivitas Sancti celebratur c. The Rubrick of this Law is De temporibus diebus pacis Regis intimating Term-time and here in the Text the Vacations are called Dies pacis Dei sanctae Ecclesiae as I said in he beginning But pax Dei pax Ecclesiae pax Regis in other Laws of Edward the Confessor and elsewhere have other significations
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
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
homicidium casu commissions culpa non praecedente non est imputandum And Sibi imputari non debet quia fortuitos casus qui praevideri non possunt non praevidit And De casu fortuito nullus tenetur cum praevideri non possit And upon this the stream of the Canonists do run as by a multitude of Books may be shew'd with whom our Bracton a great Civilian and Common Lawyer too Homicidium casuale non imputatur 5. The two heads whereto the Law looketh freeing a man from blame and expresly from Irregularity are that the person by whom the Action is perform d do not dare operam rei illicitae and that he use diligence of his part that no hurt be committed Azorius the Jesuite saith Irregularitas cum ob delictum constituitur non nisi ex lethali peccato contrahitur nisi ex homicidio fiat quis irregularis eo quod det operam rei vetitae interdictae nam tunc quamvis homicidium casu sequatur ob culpam nostram levem vel levissimam multorum est opinio irregularitatem contrahi And Ivo in his Canons some hundreds of years before him Si duo fratres in sylva arbores succiderint appropinquante casura unius arboris frater fratri dixerit Cave ille fugiens in pressuram arboris inciderit ac mortuus fuerit vivens frater innocens de sanguine germani dijudicatur Now the caâ—e at Bramsil is within the compass of these two conditions For the party agent was about no unlawful work for what he did was in the day in the presence of fourty or fifty persons the Lord Zouch who was owner of the Park not only standing by but inviting to Hunt and Shoot and all persons in the Field were call'd upon to stand far off partly for avoiding harm and partly lest they should disturb the Game and all in the Field perform'd what was desir'd And this course did the Lord Arch-bishop use to take when or wheresoever he did shoot as all persons at any time present can witness never any man being more solicitous thereof than he evermore was And the morning when the deed was done the Keeper was twice warn'd to stay behind and not to run forward but he carelesly did otherwise when he that shot could take no notice of his galloping in before the Bow as may be seen by the Verdict of the Coroner's Inquest 6. This case at Bramsill is so favourable that the strictest Writers of these times directly conclude that if a Clergy-man committing casuale homicidium be about a forbidden and interdicted act yet he is not irregular if the interdicted act be not therefore forbidden because it may draw on Homicide And thereupon inasmuch as Hunting is forbidden in a Clergy-man not in respect of danger of Life but for Decency that he should not spend his time in Exercises which may hinder him from the study fit for his Calling or for other such reasons Irregularity followeth not thereupon And to this purpose writeth at large Soto Covarruvias and Suarez who are great Canonists and Schoolmen And if this be true as out of great reason it may be so held how much further is the present case in question from Irregularitie 7. But some go directly to the point and say that the Lord Arch-bishop did navare operam rei illicitae because he was on Hunting for that was interdicted to a Bishop by the Canon De Clerico Venatore and so by a consequent he must needs be Irregular To which objection see how many clear and true answers there be As first that the Canon being taken out of the Decrees is by Gratian himself branded to be Palea no better than Chaff Secondly it is cited out of the fourth Council of Orleans and there is no such thing to be found as the Gloss well observeth Thirdly it forbiddeth Hunting cum canibus aut accipitribus and none of these were at Bramsil And if you will enforce it by comparison or proportion the rule of the Law is Favores sunt ampliandi odia restringenda Where mark when Hunting with Dogs or Hawks is forbidden it is not for fear of Slaughter for there is no such danger in either of them Fourthly the Canon forbiddeth Hunting voluptatis causa but not recreationis or valetudinis gratia which the Books say is permitted etiam Episcopo Fifthly the Canon hath Si saepius detentus fuerit if he make a Life or Occupation of it which the world knoweth is not the Arch-bishop's case but a little one time in the year directed so by his Physician to avoid two diseases whereunto he is subject the Stone and the Gout Sixthly it is clamosa venatio against which the Canon speaketh not quieta or modesta which the Canonists allow and this whereof the question ariseth was most silent and quiet saving that this accident by the Keeper's unadvised running in hath afterwards made a noise over all the Countrey 8. These Exceptions as they naturally and without any enforcing give answer to this Objection of the Canon so there is another thing that may stop the mouth of all Gain-sayers if any Reason will content them And that is that by the Stat. of Henr. VIII 35. ca. 16. no Canon is in force in England which was not in use before that time or is not contrary or derogatory to the Laws or Statutes of this Realm nor to the Prerogatives of the Royal Crown of which nature this is For in Charta de Foresta Archbishops and Bishops by name have liberty to Hunt and 13. Ric. II. cap. 13. a Clergy-man who hath 10l. by the year may keep grey-hounds to hunt And Linwood who liv'd soon after that time and understood the Ecclesiastical Constitutions and the Laws of England very well in treating of Hunting speaketh against Clergy-men using that exercise unlawfully as in places restrain'd or forbidden but hath not one word against Hunting simply And the Arch-bishop of Canterbury had formerly more than twenty Parks and Chaces of his own to use at his pleasure and now by Charter hath free-warren in all his lands And by ancient Record the Bishop of Rochester at his death was to render to the Arch-bishop of Canterbury his Kennel of Hounds as a mortuary whereof as I am credibly inform'd the Law taketh notice for the King Sede vacante under the name of Muta canum and Mulctura To this may be added the perpetuated use of Hunting by Bishops in their Parks continu'd to this day without scruple or question As that most Reverend man the Lord Arch-bishop Whitgyfte us'd in Hartlebury-park while he liv'd at Worcester in Ford-park in Kent in the Park of the Lord Cobham near Canterbury where by the favour of that Lord he kill'd twenty Bucks in one journey using Hounds Grey-hounds or his Bow at his pleasure although he never Shot well And the same is credibly reported of the Lord Arch-bishop Sandes And it is most true that the
Deans and Chapter of Winchester use it as they please in their Franchise To say nothing of Dr. Rennal whose Hounds were long famous throughout all England and yet he was by profession a Canonist and knew well what induced Irregularity I will add two things more which directly appertain to the Arch-bishop of Canterbury The one is the famous Record That at the Coronation of Queen Eleanor wife to Henr. III. the Earl of Arundel who was by his place Cup-bearer for that day was enforc'd to serve by a Deputy because he was Excommunicated by the Arch-bishop for taking up his Hounds coming into the Earl's grounds to Hunt where the Arch-bishop pleaded and alledg'd that it was lawful for him to Hunt within any Forest of England whensoever he would The other is that which is written of Arch-bishop Cranmer in his life where I will cite the very words Permiserat ei pater aucupium venationem equitationem c. Quibus quidem cum jam Archiepiscopus relaxare animum abducere se à rebus gravioribus vellet ita utebatur ut in famulatu suo non fuerit quisquam qui in generosum equum salire ac tractare elegantius aut aves ferasque aucupio aut venatione insequi commodius intelligentiusque potuisset Saepe etiam etsi oculis infirmis esset arcum tendens sagitta percussit seram Out of all which and many more Records and Cases that are to be shewed the Conclusion is clear That howsoever the Canon may touch Bishops and Clergy-men beyond the Seas it meddleth not with the Bishops of England who by favour of Princes and the State have Baronies annext to their Sees So that it doth arise out of true collection from these Heads that there is no danger of Irregularity in the Lord Arch-bishop's case either toward himself or other men His Majesties Princely Grace giveth an end to all and this he most humbly craveth For other things God being appeas'd as he hopeth that he is he dreadeth not the tongue or pen of any enemy among whom the Popes and Cardinals have wilfully committed many poisonings murthers and outragious acts and yet they must believe that they are the head and chiefest members of the Church AN ANSWER TO THE Foregoing Apologie for Arch-bishop Abbot By Sir HENRY SPELMAN Kt. TOuching the First Second and Third Sections It may be that the Priests in the old Law whose Ministry was altogether in blood were not prohibited but that upon just occasion they might shed even the blood of man as well as of beasts and put on an Armour as well as an Ephod For the Tabernacle was covered with red Skins to signify cruentum Seculum cruentum Ministerium and Moses whose hands were dipt in blood was not forbidden to be the chief Founder thereof But when the Temple came to be built which was the image of the Church of Christ then the hands of David tho' they had fought the battles of God yet because they were seasoned with blood they might not lay one stone in that Foundation Therefore when the old Law and this bloody Priesthood were grown to an end and going out of the world and that the Priests of the Gospel were entring in their room into the world our Saviour commanded Peter to put up his sword for now Arma horrentia Martis rejicienda and stola candida induenda fuit Tho' then some Priests in the old Law and many thousand Levites were Martial-men yet for many hundred years in the time of the Gospel I read not of any insomuch that the succeeding ages desiring a Martial Saint were driven to suppose St. George Whether therefore these Laws of the Church which at this day prohibit Clergy-men to meddle with matters of blood be meerly ex jure positivo or ex divino mixto I leave it to the determination of the Reverend Divines 4. Concerning the Cases alledg'd out of the Decretals it is true that the Rubrick is Homicidium casuale non imputatur ei qui non fuit in culpa and Homicidium casuale non imputatur ei qui dedit operam rei licitae nec fuit in culpa And so likewise is that alledg'd out of the Gloss thereupon and out of Bracton But let us parallel the case in these with them which are as followeth A. and P. two Clerks Sporting together A. by chance threw P. down who having a knife by his side the same happened to wound A. that he died Pope Alexander III. commanded the Bishop of Exeter in this case to admit P. to holy Orders for Sporting was lawful A sickly Chaplain being gotten upon an unruly Horse and he checking him with Bridle and Spur to stay him the Horse brake his Bridle cast his Master and running over a Woman coming by kill'd a Child in her arms This Chaplain was admitted to holy Orders for that neither in Will nor Act he committed Homicide but also did a lawful Act. One being to unlade a Cart of Hay looked round about to see if any were near and seeing none threw a stack off the Cart and having unladed it a Boy was after found dead with a little stripe in his face This Priest after Canonical purgation was admitted to his place A Monk helping to take a Bell down out of a Steeple casually thrust down a piece of timber which bruised a Boy to death The Monk is judged not uncapable of further Ecclesiastical Preferment for that the business was necessary and the place not for ordinary resort A Priest tolling a Bell to Prayers the same fell and killed a Boy The Bishop is commanded to suffer the Priest to execute his Function for Nihil potuit imputari si casus omnes fortuitos non praevidit Tho' there be many points in all these cases and more in some than others to excuse the Parties agent yet will I meddle only with those two which are most eminent and offer d by the Apologist that is Animus or Intentio innocua and Actio legitima Touching the Intent none is so impious as to imagine that his Lordship intended to hurt any man yet is there this difference between his intent and theirs in the cases alledged they intended to hurt neither Man nor Beast he tho not to hurt a Man yet to kill a Beast they nihil saevum aut non legitimum he legitimum quiddam sed tamen saevum For there is a kind of cruelty in the slaughter of every thing and therefore in the old Law Lev. 17. 13. He that taketh any beast or fowl by hunting that may be eaten shall pour out the blood thereof and cover it with dust that the cruelty appear not as ◠take it And in our Law those that were exercised in slaughter of Beasts were not received to be tryers of the life of a Man Much is to be said out of Histories to this purpose But to come to the point whereon all dependeth Whether the Action his Lordship was now about be lawful or not