Northampton who builded the gallery there but in Queen Mary's time the same was restored to that See where it so continueth 5. The Lord Arch-bishop of YORK'S house was the White-hall much enlarg'd and reedify'd by the Cardinal Wolsey then Arch-bishop of York as by the Arms remaining in wood stone and glass in sundry places of that house may appear And after the said Cardinals conviction of Premunire and Death the same was made parcel of the King's Palace at Westminster by purchase from the Arch-bishop of York as appeareth by the Stat. of 28. Hen. VIII ca. 12. But afterwards until anno 2. or 3. of Queen Mary the Arch-bishop of York had no other dwelling-place near London in right of his See or by reason of his Arch-bishoprick but the house at Battersey and then Queen Mary gave to Arch-bishop Heath and his Successors the late Duke of Suffolk's house called Suffolk-place in Southwark which the Arch-bishop of York by confirmation of the Dean and Chapter there shortly after sold away to others and purchased to his See York-place where the Lord Chancellor remaineth together with the houses adjoining to the Street Which house was sometime the Bishop of Norwich's Place and the same among all or the greatest part of the possessions of the See of Norwich about an 27. Hen. VIII were convey'd to the King by a private Act of Parliament in recompence of the union of the Monastery of St. Bennets and the possessions thereof to that Bishoprick being of far better value than the ancient Lands of the Bishoprick of Norwich assur'd to the King as is recited in the Statute of 32. Hen. VIII ca. 47. whereby the Bishop of Norwich is made Collector of the Tenths of his Diocess as other Bishops were being formerly free'd thereof by the said private Statute of 27. Hen. VIII Which said now York-place by Hen. VIII was convey'd in fee to Charles Brandon Duke of Suffolk and after the death of the said Duke's sons the coheirs of the Duke's sons sold the same to the said Arch-bishop Heath and his Successors 6. But the Bishop of NORWICH was limited by the said private Act of 27. Henry VIII to enjoy perpetually in succession a Prebend in the Free-Chappel of St. Stephens at Westminster after dissolv'd by the Statute of Dissolution of Colledges and Free-Chappels 1. Ed. VI. and the house thereto belonging in Chanon-row whereof then was incumbent one Knight but the house is said to be Leas'd for some small Rent by the Bishop of Norwich to Sir John Thinn Knight in Edw. the Sixth's time for many years enduring And that the house now call'd York-place was belonging to the Bishop of Norwich is proved by a Case 21. Edw. IV. fol. 73. in a Presentment against the Bishop of Norwich in the King's Bench for annoyance of a way inter hospitium Episcopi Norwicensis Dunelmensis in parochia Sancti Martini in Campis 7. durham-DURHAM-HOUSE as appeareth in that Case was the Bishop of Durham's house and Bishop Tonstal about the 26 th of Hen. VIII convey'd the same to the King in Fee and King Henry VIII in recompence thereof granted to the See of Durham Coldharborrowe and certain other houses in London And after Edw. VI. about an 2. granted durham-Durham-house to the Lady Elizabeth his Sister for life or until she be otherwise advanced After the Bishoprick of Durham by a private Statute not printed of 7. Edw. VI. was dissolved and all the possessions thereof given to King Edw. VI. who shortly after convey'd in Fee the said Bishop's late house at Coldharborrowe and other houses in London to Francis Earl of Shrewsbury and his heirs And after the 2d. Mariae ca. 3. The Stat. of 7. Edw. VI. for dissolving that Bishoprick is repeal'd but the Mansion-house of Coldharborrowe and other Tenements in London so granted to the said Earl be confirm'd And the Bishop by that Act prayeth a recompence from the Queen at his charge Whereupon Queen Mary about anno V. or VI. of her reign granteth to the said Bishop of Durham her reversion of Durham-place in succession which coming into possession by the death of Queen Elizabeth the late Bishop of Durham now Lord Arch-bishop of York enter'd into and enjoy'd the same in the right of his See by opinion of the chief Justices of the Land referr'd by the King being opposed by Sir Walter Rawleigh as likewise doth the now Bishop of Durham 8. The Bishop of LICHFEILD and COVENTRY of old call'd the Bishop of Chester before the new erection of the new Bishoprick of Chester had his Place where Somerset-house is builded 9. 10. As likewise the Bishops of WORCESTER and LANDAFF had there sometime a house as Stow in his Book of Survey of London saith But the said three Bishops Places together with a Parish Church call'd Straunde-Church and the greatest Inn of Chancery call'd Straunde-Inn belonging to the Middle Temple were defaced without recompence to any of the said three last mentioned Bishops Parish Church or Inn of Chancery Other than to the Bishop of WORCESTER who had in respect of his former house a house in the White Fryers which he enjoyeth 11. Arondell-house now the Lord Admiral 's was the Bishop of BATH and WELLS'S and was assured in Edw. VI. time to Admiral Seymer and is now quite sever'd from that Bishoprick without recompence 12. Likewise the Bishop of EXETER'S Place after call'd Paget Leicester and Essex-house of the several Owners of the same And it is thought the Bishop of Exeter hath likewise no recompence for the same of any other house in or near London 13. The Bishop of SARUM'S Place now call'd Dorset-house before call'd Sackvile-house and of former time Salisbury Court being in long Lease made by Bishop Capon who was Bishop there in Hen. VIII Edw. VI. and Queen Mary's time was exchang'd temp Reginae Elizabethae by the great Learned Reverend Father Bishop Jewel for recompence of good value in Lands in his Diocess or elsewhere in the West Country 14. The Bishop of St. DAVID'S Place was near adjoyning to Bridewell upon the ditch that runneth to Fleet-bridge into the Thames and was granted in Fee-farm for a Mark Rent temp Edw. VI. to Dr. Hewick the Physician under which purchase the same is now enjoy'd 15. The Bishop of HEREFORD'S Place as Stow in his Survey of London pag. 357. saith is in the Parish of St. Mary de Monte alto or Mount-halt in London of which Bishops Patronage the said Church also is which Place is in the tenure of the Bishop of Hereford or his Tenants 16. 17. The Bishop of LONDON'S Place at Pauls was never sever'd from the Bishop's possession And likewise ELY Place from the Bishop of that See other than such part thereof as the late Lord Chancellor Hatton had by Lease for many years from the late Bishop Cox 18. The Bishop of BANGOR'S house is or lately was Mr. Aleworth's house
now to our greater enrichment return'd again amongst us by dissolution of these Popish Ceremonies Viand You may also reckon the mony given to maintenance of Priests Monkery Lights Obits Anniversaries and all the plate and treasure of the Clergy at that time to be of the same sort Selv. That did Edward the first well consider and therefore to the end that he might dig it out of the grave and bring it abroad again among the people that had need thereof he suffer'd the matter to be so handl'd by one of his Treasurers that certain Captains appointed to work the feat placing their Souldiers in every quarter through the Realm made search at one time in July at three of the clock in the afternoon for all such mony were it hid or laid up in hallowed places and taking the same away brought it unto the King who dissembling the matter as he that stood in need excused the act done by his Treasurer and thought it no offence but rather a good work Besides all this there is yet another means whereby the Treasure of our Land must needs be much encreased and that is by divers good Laws and Statutes made both for causing it to be brought into the Realm and also for containing it within the lists of the same when it is come And that is by the Stat. 14. Edw. III. whereby it was enacted that every man denizen or stranger that should transport any wooll out of the Land should find sufficient sureties to bring again unto the King's Exchange for every sack of wooll transported plates of Silver to the value of two marks And by the Statute of 3. Henry V. confirm'd and quickned by 32. Hen. VI. which provided that every Merchant-stranger buying wooll in England not coming to the Staple to be sold shall bring to the Master of the Mint of the Tower of London of every sack one ounce of Bullion of Gold and in the same manner of three pieces of Tin one ounce of Bullion of Gold or the value in Bullion of Silver upon pain of forfeiture of the same Woolls and Tin or the value thereof to the King It is provided also for containing of mony within the Land that all Merchant-strangers shall employ all the mony receiv'd by them within this Realm upon the Merchandise and Commodities of this Realm deducting their reasonable expences and that they shall give sufficient surety for doing hereof and the trespasser to forfeit and be punished grievously as in the Statutes is contain'd 3. Hen. VII affirming and enlarging 14. Edw. IV. and many other of like effect And by 4. Hen. VII that no man dwelling in England shall pay or deliver wittingly to any Merchant or other born out of the King's obedience for any Merchandise or Wares or in any other wise any Gold coined Plate Vessels Bullion Jewels of Gold or Silver upon pain of forfeiture thereof And by 14. Edw. IV. affirm'd by 4. Hen. VII and for a time continued by 1. and 3. Henry VIII with a mitigation of the bloody penalty all men except such as had the King's Licence or were dispensed with by those Statutes were utterly inhibited from carrying out of the Realm any manner of Coin plate vessel massy Bullion jewels of Gold or Silver Which Law and many other of the like effect tho' they continue not now in force yet the fruit thereof remaineth to us still as Children enrich'd by their Fathers sparings Besides it is not altogether to be passed in silence that our treasure is somewhat increased by the Gold and Silver try'd out of our own Mines here in England Which tho' it be little or nothing in respect that in this latter age we have wimbl'd even into the bowels of Plutus's Treasury the Western Indies yet is it so much as our Historiographers both new and ancient have thought it worth the noting and all our Kings from time to time have made especial account of as well appeareth by a multitude of Leases thereof granted by them to many noble Personages extant in the Checquer Records and also by the process and argument of the Earl of Northumberland's Case concerning a Copper-mine 10. Eliz. which in Plowden's Commentaries is at large reported But be it little or great Many littles as our Adage saith make a great and continual accession amasseth at length to a mighty thing as is well seen in the Hill Testacchio in Rome which standing in a plain and being about half a mile in compass and exceeding in height any Tower in the Town-wall is said to have been made of the shards of the potts wherein the tribute-mony was brought to Rome or as pleaseth rather the more Learned sort of broken potts thrown out of the VII College of Potters built by Numa Pompilius But be it the one or other the semblance serves my turn and there 's an end THE PLACES or DWELLINGS OF THE ARCH-BISHOPS and BISHOPS of this Realm Now or of former times in which Houses their several Owners have Ordinary Jurisdiction and be as parcel of their Diocess as is recited in the Stat. of 33. Hen. VIII ca. 31. altho' they be situate within the precinct of another Bishop's Diocess 1. THe Lords Arch-bishops of CANTERBURY of long time enjoyed and do enjoy Lambeth-house as appeareth in Historia Cantuariensium Archiepiscoporum set forth as is thought by Dr. Ackworth in the Lord Arch-bishop Parker's time The which house was never severed from the Lord Arch-bishop's See of Canterbury since the annexion thereof to that See 2. The house at Lambeth-marsh commonly call'd Carlisle-house was the Bishop of ROCHESTER'S Palace until about 26. Hen. VIII as appeareth in the foresaid Historia Cantuariensis and also in the Act of Parliament of 22. Hen. VIII ca. 9. made against poysoning whereby it doth appear that the house of John Bishop of Rochester was at Lambeth-marsh But afterwards about An. 27. Hen. VIII or after the same being some ways the Kings was convey'd to Robert Aldridge Bishop of CARLILE and his Successors in exchange for his houses near Ivie-bridge now the Earl of Worcester and Salisbury's and other houses there toward the Street and of a yearly Rent of 16l. or thereabouts out of those houses given to the Bishop of Carlile and his Successors for those houses formerly call'd Carlile-place But the said Bishop Aldridge leas'd the house of Lambeth-marsh for some small and not valuable Rent for divers years yet enduring 3. The Bishop of ROCHESTER had given for his Palace to dwell in certain houses lately call'd Rochester-house near adjoining to Winchester-place and sometime as it is reported parcel of the possessions of the Priory of St. Swithins in Winchester but that place is lately divided into several little dwellings 4 WINCHESTER Place with the liberty of the Prison of the Clynke and Bancke belonged and doth belong to the Bishop of Winchester and the house was in Edw. the Sixth's time conveyed to the Marquess of
lands and portion of the Levites was given to do the service of the Tabernacle the lands of the other tribes to fight the battels of the Lord against his idolatrous enemies and to root them out Thus may fancy couple the remotest things To come lower down and nearer home Pausanias tell 's us that when Brennus who they say was a Britain invaded Greece with an army of Gauls every horseman of the better sort had two other horsemen to attend and second him as his Vassals and they three together were called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Trimarcesiam i. e. a society of three horsemen But Caesar saith that the nobler Gauls in his time had according to their abilities many horsemen attending them in war whom by a German word he calleth Ambactos which properly signifieth servants vassals workmen and labourers yet he by a fairer name expoundeth it there in Latin Clientes and in another place calleth them among the Germans Comites familiares as accounting them like Abraham's 318. Souldiers to be all their Lord's followers and of his family Tacitus likewise nameth them Comites as companions and followers quod bello sequi Dominum coguntur saith Cujacius But Tacitus further saith Gradus quinetiam ipse Comitatus habet judicio ejus quem sectantur that there were degrees in those companies as he whom they followed did appoint Like them perhaps in after-ages of Earls Barons Knights c. But how the Comites or Ambacti were maintained neither Caesar nor yet Tacitus have related As for such portions of land as we call Knights-Fees they could not then have any for Caesar speaking of the Germans saith and so it appears by Tacitus neque quisque agri modum certum aut fines proprios habet c. That no man hath any certain estate or peculiar bounds of lands but the Magistrate and Lords of the place assign from year to year to kindreds and such as live together what quantity of land and in what place they think good and the next year force them to remove The reason you may see in Caesar who also sheweth That they had no common Magistrate but the Lord of the Town or territorie set what laws he would among his followers or Ambactos These laws the Goths the Swedes the Danes and Saxons called Bilagines of By which in all these languages signifieth a town and lagh or laghen which signifieth laws as Gravius Suecus and our Saxon Authors testifie And tho' Jornandes a Spanish Goth writeth it after the Spanish corruption Bellagine◠yet we in England keep the very radix and word it self By-laws even unto this day tho' diverted somewhat from the sense that Caesar speaks of For we call them Town-laws or By-laws which the Townsmen make among themselves but Caesar sheweth that the Lords imposed them Herewith agreeth that of Tacitus or some other Ancient who speaking of the Germans saith Agricolis suis jus dicunt They give laws to them which dwell upon their lands For I take Agricolis here in the larger sense to extend to all that dwell upon the Lord's lands as well his military followers as his husbandmen in the same manner as solicolae containeth all that live upon the soil ruricolae all that live in the Country and coelicolae all that live in heaven These Lordships of Towns which Caesar speaketh of were after by the Normans called Maneria The Ambacti or Comites and these which he saith sectabantur Dominos suos were called Vassalli and sectatores manerii sive Curiae Domini Vassals and Suiters of Court The Bilagines or Town-laws were called Consuetudines and customs of the Mannor The jurisdiction which the Lord had over his followers and suiters was called the Court Baron and the portions of land c. assigned to his followers for their stipend or maintenance were at first called Munera after Beneficia and lastly Feuda or Tenant-lands which were of two sorts one for military men called Feudum militare and Feudum nobile tenure by Knights-service the other for husbandmen call'd therefore Feudum rusticum ignobile tenure in Socage or by the Plough Thus it appeareth that Feuds and Tenures and the Feudal law it self took their original from the Germans and Northern Nations In such condition therefore how obscure soever as Caesar and Tacitus left them to us Gerardus Niger the Consul of Milan who flourished about A. D. 1176. and first composed them into a book taketh them up as he there findeth them and speaking of the times of Caesar and Tacitus as having the forementioned passages under his eye saith Antiquissimo tempore sic erat in Dominorum potestate connexum ut quando vellent possent auferre rem in feudum à se datam And this agreeth with Caesar by whom it seemeth in the places before mentioned that the Ambacti or followers of the Germans had in those times either no land at all or no estate at all in their land or first but at the will of the Lord and then but for one single year Which Gerardus also confesseth to have been the condition of the eldest sort of feudataries for he saith presently after his former words Postea vero eo ventum est ut per annum tantum stabilitatem haberent res in feudum datae Thus for another while their Feudal Vassals whom here he calleth fideles and we now tenants by Knights-Service enjoyed their feuds no otherwise than from year to year at the pleasure of their Lords either by grant or sufferance till further grace confirmed them to them for divers years and at length for term of life which Gerardus also presently there declareth saying Deinde statutum est ut usque ad vitam fidelis producerentur feuda In this manner stood the principal feuds themselves even those of Earldoms and Dukedoms which they call feuda majora and feuda regalia in the latter time of the Saxons till the coming of the Conquerour But as touching the lesser feuds which we call Knights-Fees I find nothing in Abby-books otherwise than a numerous multitude of Leases and Grants made by Bishops and Abbats to their followers for term of life without mention of Tenure or Feudal service Yet I must confess that there is a notable precedent left us by Oswald Bishop of Worcester in the time of King Edgar who in granting out the lands of his Bishoprick unto his followers for life or three lives imposed upon them by a solemn Instrument ratified by the King himself a multitude of services and charges as well military as civil which after you shall here see and then consider how and whether they conduce to our Feuds or not If we understand them to be Feuds among the Saxons or of that nature then are we sure they were no more than for life and not inheritable nor stretching further without further grace obtained from the Lord.
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
very Charters of the Saxon Kings themselves should stand together viz. That their Thanelands should be liberae ab omni seculari gravedine and yet be subject to that which of all other was most grievous viz. our Knights-service in Capite It may be answered as the Report in another place delivereth positively That Tenure in Capite cannot be transferred or extinct by release or grant for it is an incident inseparably annexed to the Crown The answer were good if once they had made it appear that both this Tenure and this Law were in force in the Saxons time There is nothing shew'd to prove that suggestion and were it true I should desire no better argument on my behalf than what the place it self bringeth with it For if Thaneland were converted into Reveland and that Reveland signify Socage-land then it is as manifest as the Sun that Tainland did not signify land holden by Knights-service in Capite for if it did then could it not decline into Socage-Tenure as their own Maxime doth demonstrate If there be a cloud before this Sun I shall remove it also My Lord Coke citing this place out of Doomsday noteth in the margin Herefordsâ— but delivereth both the title and the text by halfs The title is Hereford Rex the text thus Haec terra fuit tempore Edwardi Regis Tainland sed postea conversa est in Reveland Et idem dicunt legati Regis quod ipsa terra census qui inde exit furtim aufertur Regi The very title discovers the Tenure for if it be Terra Regis as the word Rex declareth it then it is plainly Ancient Demesne and every Lawyer will tell us that in ancient Demesne there was no Tenure by Knights-service but wholly in Socage So that this cloud now vanisheth into the air and our Tainland is clearly discovered to be but Socage I shall speak more of it afterwards But what construction shall we now find for the words in Doomsday Tainland conversa est in Reveland Hoc opus hic labor est It is sufficient for me to have quit my self of the objection they must seek some new interpretation Yet will I help them what I can in that also I suppose that the land which is here said to have been Thaneland T. E. R. and after converted into Reveland was such land as being reverted to the King after the death of his Thane who had it for life was not since granted out to any by the King but rested in charge upon the account of the Reve or Bailiff of the Mannour who as it seemeth being in this Lordship of Hereford like the Reve in Chaucer a false brother concealed the land from the Auditor and kept the profit of it to himself till the Surveiors who are here called Legati Regis discovered this falsehood and presented to the King that furtim aufertur Regi as by the words in the latter part of the paragraph which my Lord Coke reciteth appeareth Besides all this why should the coming of these lands into the Reve's accompt alter the nature of the Tenure seeing all men know that the Reves and Bailiffs of Mannours govern and dispose the lands thereof as well which are holden by Knights-service as those in Socage As for the old French MS. Custumary which they affirm doth mention Tenures by Knights-service long before the Saxons even in the time of the Britains I doubt not but there may be such a passage in it for the Law which they ascribe to Edward the Confessour for proving Feuds to be in use in his time affirmeth also that the Laws Dignities Liberties c. of the City of London were at that day the same which were in Old Great Troy But as they in the Report wave the one so I take them both for Romances and pass them over as not worth an answer Having thus particularly answered every argument inference and objection produced in the Report to prove our Feuds and Form of Tenures to have been in use amongst our Saxons I shall now conclude that it neither was nor could be so unless we shall assume that our poor illiterate Saxons in a corner of the World were the Authors of the Feodal Law and gave the precedent thereof to the Germans Longobards French Italians and the Empire For in none of these was it otherwise extant till about the end of our Saxon Monarchy then by such budds and branches as we formerly have expressed out of Caesar Tacitus and some other CHAP. XXV How the Saxons held their Lands and what obliged them to so many kinds of Services IT cometh now in question how the Saxons held their lands and what obliged them to that multitude of services which lay upon them both in war and peace As for Tenures I still say that they had not the name in use among them yet like the Jews the Greeks the Romans and other ancient Nations a multitude of services whereof some were personal and some praedial Personal services were those which a man did for his person or personal Estate either generally to the King and Common-wealth in publick occasions as in the Trinodi necessitate c. or particularly to his own Lord upon particular agreement between them like the Commendati before mentioned and some ministerial Officers and domestick servants Praedial service was that which was done after the same manner to the King or his Lord for land only and this was of three sorts Alodial Beneficiary and Colonical Alodial service was that which the Greater Thanes and other who had Alodial land otherwise called Bocland and as I take it Gavelkind and Hereditary land were tyed to do pro bono publico to the King and Common-wealth in respect of those Lands tho' by the Feudal law that kind of land was free from all Tenure and Feodal service I should not therefore use this solecism to call them services if the Dialect of our Law afforded me some other fit expression but the Saxons themselves term'd them Land-rights not services of which sort were the Trinodis necessitas of Expedition Burghbote and Brigbote the guarding of the sea and of the peace attendance upon the King's summons for his Park or Palace before expressed and besides them all the Tribute of Danegelt c. Beneficiary services were those which were done by the midling or lesser Thanes to the King and the greater Thanes either militarily in war or ministerially in peace for those portions of Out-land which being granted to them temporarily as at will of the Lord or for life or lives were then called Beneficia but being extended after to perpetuity they were named by the Normans Feoda The Creation manner variety and multitude of them you shall see in the Charter of Bishop Oswald by and by ensuing Colonical services were those which were done by the Ceorls and Socmen that is Husbandmen to their Lords the King and Thanes of all sorts
for some portions also of their Out-lands These were after called feoda rustica beyond the Seas with us Socage-lands and were holden at pleasure of their Lords either by rendring part of the profits thereupon growing or reared as victuals especially in Saxon called Feorms c. whereof see the rates in the Laws of King Ina Chap. 70. or by doing some works of Husbandry upon the Lord's Inlands now called his Demeans as Tillage Carriage Harvest-works c. Among all these diversities of services none cometh so near to the nature of Feuds and Tenures as the Beneficiary do Let us therefore consider them the more seriously by that notable pattern of them left unto us from Bishop Oswald who dividing much of the land of his Church of Worcester into those kind of portions which after the Feodal word then in use he called Beneficia granted the same unto his Thanes and followers not by the name of his milites or tenentes but of his fidos subditos for the term of three lives according to the manner which they retain in those parts even to this day and reserving to his Church and successors not homagium sâ—rvitium the material words in Tenure to create Knights-service in the Feodal Law but the services mentioned in his Charter secundum Conventionem cum eis factam sponsionem suam as the very words are there expresly But hear the Charter or rather Epistle as he himself calleth it which the King confirmed and a Councell The Aranga or preamble of it is a thankful acknowledgement of King Edgar's bounty and goodness to him the Bishop and his Church the conclusion after the manner of those times a curse and heavy imprecation against all such as shall spoil or violate the same Both which being long and nothing to our purpose I think convenient here to pretermit The rest is as followeth under the title given it in the Manuscript CHAP. XXVI The Charter whereby Oswald Bishop of Worcester disposed divers lands of his Church after the Feodal manner of that time entituled Indiculum libertatis de Oswaldes-Lawes-Hundred DOmino meo charissimo Regi Anglorum Edgaro ego Oswaldus Wigorniensis Ecclesiae Episcopus c. Quare quomodo fidos mihi subditos telluribus quae meae traditae sunt potestati per spatium temporis trium hominum id est duorum post se haeredum condonarem placuit tam mihi quam ipsis fautoribus consiliariis meis cum ipsius Domini mei regis licentia attestatione ut fratribus meis successoribus scil Episcopis per Chirographi cautionem apertius enuclearem ut sciant quid ab eis extorquere juste debeant secundum conventionem cum eis factam sponsionem suam unde hanc Epistolam ob cautelae causam componere studui nequis malignae cupiditatis instinctu hoc sequenti tempore mutare volens abjurare a servitio Ecclesiae queat Haec itaque conventio cum eis facta est ipso Domino meo Rege annuente sua attestatione munificentae suae largitatem roborante confirmante omnibusque ipsius regiminis sapientibus principibus attestantibus consentientibus hoc pacto eis terras Sanctae Ecclesiae sub me tenere concessi Hoc est ut omnis Equitandi lex ab eis impleatur quae ad Equites pertinet ut pleniter persolvant omnia quae ad jus ipsius Ecclesiae juste competunt scil ea quae Anglice dicuntur Ciricsceott Toll id est thelonium Tacc id est swinseade caetera jura Ecclesiae nisi Episcopus alicui eorum quid pardonare voluerit seseque quamdiu ipsas terras tenent in mandatis Pontificis humiliter cum omni subjectione perseverare etiam jurejurando affirment Super haec etiam ad omnis industriae Episcopi indigentiam semet ipsos praesto impendant Equos praestent ipsi Equitent ad totum piramiticum opus Ecclesiae calcis atque ad Pontis aedificum ultro inveniantur parati Sed Venationis sepem Domini Episcopi ultronei ad aedificandum repperiantur suaque quandocunque Domino Episcopo libuerit Venabula destinent Venatum Insuper ad multas alias indigentiae causas quibus opus est Domino Antistiti saepe furnisci sive ad suum servitium sive ad regale explendum semper illius Archiductoris dominatui voluntati qui Episcopatui praesidet propter beneficium quod illis praestitum est cum omni humilitate subjectione subditi fiant secundum ipsius voluntatem terrarum quas quisque possidet quantitatem Decurso autem praefati temporis curriculo viz. duorum qui post eos qui eas mode possident haeredum vitae spatio in ipsius Antistitis sit arbitrio quid inde velit quomodo sui velle sit inde ita stet sive ad suum opus eas retinere si sic sibi utile judicaverit sive eas alicui diutius praestare si sic sibi placuerit velit ita duntaxat ut semper Ecclesiae servitia pleniter ut praefati sumus inde persolvantur Ast si quid praefatorum delicti praevaricantis causa defuerit jurum praevaricationis delictum secundum quod Praesulis jus est emendet aut illo quo antea potitus est dono terra careat Siquis vero Diabolo instigante c. The sum of all aforesaid is that the Bishop's Tenant shall pay and do as followeth First That they shall perform all duties that belong to Horsemen That they shall pay all things that are due unto the Church and perform all other rights that belong to it That they shall swear to be in all humble subjection at the command of the Bishop as long as they shall hold these lands of him That as often as the occasion of the Bishops shall so require they shall present themselves to be ready for it and shall both furnish him with Horses and ride themselves That of their own accord they shall be ready to perform all the work about the Steeple of that Church and for the building of Castles and Bridges That they shall readily help to fence in the Bishop's Parks and to furnish him with Hunting weapons when he goeth a hunting That in many other cases when the occasion of the Lord Bishop shall require whether it be for his own service or for the King's service they shall in all humbleness and subjection be obedient to the chief Captain or Leader of the Bishoprick for the benefit done unto them and the quantity of land which every one of them possesseth That after the expiration of the three lives the land shall return again to the Bishoprick That if there be any defect in performing the premisses by reason that some shall vary or break the agreement the Delinquent shall make satisfaction according to the justice of the Bishop or shall forfeit the land which he had of his gift I suppose that this was the common manner of grants and reservations in those
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
that none should be put to further trouble unless the King 's own necessity or the common good of the Kingdom required it Therefore the Bishops Earls Sheriffs Heretoches or Marshals of Armies Trithingreves Leidgreves Lieutenants Hundredors Aldermen Magistrates Reves Barons Vavasors Thungreves and other Lords of land must be all diligently attending at these Assemblies lest that the lewdness of offenders the misdemeanor Gravionum i. of Sheriffs and the ordinary corruption of Judges escaping unpunished make a miserable spoil of the people First let the laws of true Christianity which we call the Ecclesiastical be fully executed with due satisfaction then let the pleas concerning the King be dealt with and lastly those between party and party and whomsoever the Church-Synod shall find at variance let them either make an accord between them in love or sequester them by their sentence of excommunication c. Whereby it appeareth that Ecclesiastical causes were at that time under the cognizance of this Court But I take them to be such Ecclesiastical causes as were grounded upon the Ecclesiastical laws made by the Kings themselves for the government of the Church for many such there were almost in every King's time and not for matters rising out of the Roman Canons which haply were determinable only before the Bishop and his Ministers To proceed Before they entered into any causes as it is commanded in the Laws of Canutus which we mentioned par 2. ca. 17. the Bishop to use the term of our time which from hence taketh the original gave a solemn charge unto the people touching Ecclesiastical matters opening unto them the rights and reverence of the Church and their duty therein towards God and the King according to the word of God and Divinity Then the Alderman in like manner related unto them the Laws of the land and their duty towards God the King and Common-wealth according to the rule and tenure thereof Of all which because I find a notable precedent in a Synodal Edict made by Carolus Calvus Emperour and King of France in Concil Carissiaco An. Dom. 856. I will here add it not to shew that our Saxons took their form of government from the French but that both the French and they as brethren descending from one parent the German kept the rights and laws of their natural Country Episcopi quinque in suis parochiis Missi in illorum Missaticis Comitesque in eorum Comitatibus pariter placita teneant quo omnes Reipub. Ministri Vassi Dominici omnesque quicunque vel quorumcunque homines in iisdem parochiis Comitatibus sine ulla personaram acceptione excusatione aut dilatione conveniant c. That is The Bishops in their parishes or Diocesses and the Justices Itinerant or Aldermen in their Circuits and the Earls in their Counties shall hold their pleas together whereunto all Ministers and Officers of the Common-wealth all the King's Barons and all other whatsoever they be or whose Tenants soever they be within the same parishes or Counties without any respect of persons excuse or delay shall assemble together And the Bishop of that parish or Diocess having briefly noted sentences touching the matter out of the Evangelists Apostles and Prophets shall read them to the people and also the decrees Apostolick and Canons of the Church and in open and plain terms shall instruct them all what manner and how great a sin it is to violate or spoil the Church and what and how great pennance and what merciless and severe punishment it requireth with other accustomed necessary and profitable admonishments The Aldermen also or Justices shall note down such sentences of law as they call to mind and shall publish unto them the Constitutions of us and our predecessors Kings and Emperours gathered together touching this matter And the Bishops by the Authority of God and the Apostles and the Aldermen or Justices and Earls under the penalty of the King's Laws shall with all the care they can prohibit every man of the Kingdom from making any prey or spoil of the Church c. OF PARLIAMENTS WHEN States are departed from their original Constitution and that original by tract of time worn out of memory the succeeding Ages viewing what is past by the present conceive the former to have been like to that they live in and framing thereupon erroneous propositions do likewise make thereon erroneous inferences and Conclusions I would not pry too boldly into this ark of secrets but having seen more Parliaments miscarry yea suffer shipwrack within these sixteen years past than in many hundred heretofore I desire for my understanding's sake to take a view of the beginning and nature of Parliaments not meddling with them of our time which may displease both Court and Country but with those of old which now are like the siege of Troy matters only of story and discourse Because none shall go beyond me in this argument I will begin with the foundation of Kingdoms which of necessity must be more ancient than Parliaments for that a Parliament is the grand Council of the Kingdom assembled at the commandment of the King for advice in matters of State Our first labour is then to see what this Grand-Council was originally It is confest on all hands that the King is universal Lord of his whole Territories and that no man possesseth any part thereof but deriv'd from him either mediately or immediately This derivation thus proceeded The King in the beginning divided his whole territory into two parts one to be manured by his own Tenants and Husbandmen then call'd Socmen For the Kings of England us'd in those days to stock their grounds themselves like the Kings of Israel and by the profits thereof especially to maintain their Hospitality their Court and Estate having in every Mannour Officers and Servants for that purpose This part was Sacrum Patrimonium the inseperable inheritance of the Crown call'd in Doomsday Terra Regis and in Law the Ancient Demaine And because it belong'd to the husbandry of the King all that manur'd or held any part of this land were said to be Tenants in Socage and might not be drawn into the wars of which nature as touching their Tenure they continue at this day The other part of his whole territory he portioned out to Military men which tho' the other was the more profitable yet this was always held for the more honourable and therefore so divided this among his Nobles and chief servants and followers for supportation in his wars and Royal Estate To some in greater measure to others in less according to their merit and qualities Provinces to Dukes Counties to Earls Castles and Signiories unto Barons rendring unto him not ex pacto vel condicto for that was but cautela superabundans but of common right and by the Law of Nations for so I may term the Feodal-law then to be in our Western Orb all Feodal duties and services due from the Donees and their
consent of the Bishops and Barons For in his Charter whereby he divideth the Court-Christian from the Temporal he saith thus Sciatis quod Episcopales Leges communi Concilio consilio Archiepiscoporum meorum caeterorum Episcoporum Abbatum omnium Principum regni mei emendandas judicavi And this seemeth to be that same Commune Concilium totius Regni whereby he made the Laws he speaketh of in his Charter of the great Establishment aforesaid William Rufus in An. 1094. calls Episcopos Abbates cunctosque Regni Principes to a Council at Rochingheham 5. Id. Mar. Henry I. de communi Concilio gentis Anglorum saith Matthew Paris posuit Dunelmensem Episcopum in vinculis Where Gentis Anglorum might be extended to such a Parlament as we use at this day if the use of that time had born it But Eadmere speaking of a Great Counsel holden a little after at Lambith calleth it Concilium Magnatum utriusque Ordinis excluding plainly the Commons And to that effect are also all the other Councils of his time But our later Chroniclers following Polydore as it seemeth for they cite no Author do affirm that Henry I. in the sixteenth year of his reign held the first Parlament of the three Estates The truth whereof I have taken some pains to examine but can find nothing to make it good Eadmerus who flourisht at that very time writing particularly of this Council or Assembly saith XIII Kal. Aprilis factus est conventus Episcoporum Abbatum Principum totius Regni apud Serberiam cogente eos illuc sanctione Regis Henrici I. And among other causes handled there he sheweth this to be the principal viz. That the King being to go into Normandy and not knowing how God might dispose of him he desir'd that the succession might be confirm'd on his son William Whereupon saith Eadmer omnes Principes facti sunt homines ipsius Willielmi fide Sacramento confirmati Florentius Wigorniensis who liv'd at that time and dy'd about two years after reporteth it to the same effect Conventio Optimatum Baronum totius Angliae apud Sealesbiriam 14. Cal. Apr. facta est qui in praesentia Regis Henrici homagium filio suo Gulielmo fecerunt fidelitatem ei juraverunt Here is no mention of the Commons whom in likelyhood they should not have pretermitted if they had been there assembled contrary to the usual custom of those times Nor doth any succeeding Author that I can find once touch upon it I conceive there might a mistaking grow by Polydore or some other for that many of the Commons if not all were at this time generally sworn to Prince William as well as the Barons were and as after in the year 1127. to Maud his daughter Prince William being then dead But I no where find in all the Councils or Parlaments if you so will call them of this time any mention made of any other than the Bishops Barons and great Persons of the Realm And so likewise in the time of King Stephen The first alteration that I meet with is in the twenty second year of Hen. II. where Benedict Abbas saith Circa festum S. Pauli venit Dominus Rex usque ad Northampton magnum ibi celebravit Concilium de Statutis regni sui coram Episcopis Comitibus Baronibus terrae suae per consilium Militum Hominum suorum Here Militum Hominum suorum extendeth beyond the Barons and agreeth with the Charter of King John as after shall appear Yet Hoveden speaking of this Council doth not mention them but only termeth it Magnum Concilium But there hapn'd about this time a notable alteration in the Common-wealth For the great Lords and owners of Towns which before manur'd their lands by Tenants at Will began now generally to grant them Estates in fee and thereby to make a great multitude of Free-holders more than had been Who by reason of their several interests and being not so absolutely ty'd unto their Lords as in former time began now to be a more eminent part in the Common-wealth and more to be respected therefore in making Laws to bind them and their Inheritance But the words Militum Hominum suorum imply such as held of the King in Capite not per Baroniam and therefore were no Barons yet such as by right of their Tenure ought to have some voice or Patron to speak for them in the Councils of the Kingdom For holding of the King as the Barons did they could not be patronized under them And doubtless they were not many at this time tho' much encreased since the making of Domesdei book where those few that were then are mentioned And it may be the word Hominum here doth signify those that serv'd for Burrough-Towns holden of the King for it must be understood of Tenants not of Servants To grope no further in this darkness The first certain light that I discover for the form of our Parliaments at this day is that which riseth fourty years after in the Magna Charta of King John The words whereof I will recite at large as they stand not only in Matthew Paris but also in the Red-Book of the Exchequer with some little difference hapning in the writing Et Civitas Londinensis habeat omnes antiquas libertates liberas consuetudines suas tam per terras quam per aquas Praetereà volumus concedimus quod omnes aliae Civitates Burgi Villae Barones de quinque Portubus omnes Portus habeant omnes libertates omnes liberas consuetudines suas Et ad habendum commune Consilium Regni de Auxiliis assidendis aliter quam in tribus casibus praedictis de Scutagiis assidendis summoneri faciemus Archiepiscopos Episcopos Abbates Comites Majores Barones Regni sigillatim per literas nostras Et praetereà faciemus summoneri in generali per Vice-Comites Ballivos nostros omnes alias qui in Capite tenent de nobis ad certum diem scil ad terminum 40. dierum ad minus ad certum locum in omnibus literis summonitionis illius causam summonitionis illius exponemus Et sic facta summonitione negotium procedat ad diem assignatum secundum consilium eorum qui praesentes fuerint quamvis non omnes summoniti venerint Here is laid forth the Members the Matter and the Manner of summoning of a Common Council of the Kingdom which as it seemeth was not yet in the Records of State call'd a Parlament The Members are of three sorts First the arch-Arch-Bishops Bishops Abbots Earls and the Greater Barons of the Kingdom so call'd to distinguish them from the Lesser Barons which were the Lords of Mannours Secondly Those here before mention'd by Bened. Abbas to be call'd to Clarenden that held of the King in Capite whom I take to be now the Knights of the Shire And thirdly those of Cities Burroughs and
Towns call'd Burgesses and the Barons of the Cinque-ports The first sort are to appear personally or by particular Proxies for the words as touching them are Summoniri faciemus sigillatim but as touching the others it is Summoniri faciemus generaliter c. not that all should come confusedly but that they should send their Advocates which commonly are but two to speak for them These the French in their Parliaments call Ambasiatores and Syndicos In the first rank the Earls and greater Barons have their place in this Council for that they hold of the King in Capite by a Baronie And the Bishops and Abbots with them of the second rank so likewise for that it was declared and ordained in the Council of Clarendon that they should have their possessions of the King as a Barony and should be suiters and sit in the King's Court in judgements as other Barons till it came to the diminution of Members or matter of death But this Council of Clarendon did rather affirm than give them their priviledge For the Prelates of the Church were in all ages the prime part of these great Councils In the third rank the Burgesses and Barons of the Cinque-ports have their place not so much in respect of Tenure for they were not conceived to be owners of lands but for that in Taxes and Tallages touching their goods and matter of Trade they might have some to speak for them as well as other Members of the Kingdom But here then ariseth a question how it cometh to pass that every poor Burrough of England how little soever it be two excepted have two to speak for them in this great Council when the greatest Counties have no more It seemeth that those of the Counties whom we call Knights served not in ancient time for all the Free-holders of the County as at this day they do but were only chosen in the behalf of them that held of the King in Capite and were not Barones majores Barons of the Realm For all Freeholders besides them had their Lord Paramount which held in capite to speak for them as I have shewed before and these only had no body for that themselves held immediately of the King Therefore King John by his Charter did agree to summon them only and no other Freeholders howbeit those other Freeholders because they could not always be certainly distinguish'd from them that held in capite which encreased daily grew by little and little to have voices in election of the Knights of the Shire and at last to be confirm'd therein by the Stat. 7. Henr. IV. and 8. Henr. VI. But to come to our question why there are but two Knights for a County It may well seem to be for that in those times of old there were very few besides the Barons that held in capite as appeareth by that we have already spoken and that two therefore might seem sufficient for these few as well as two for the greatest Burroughs or City of England except London And it may be that of the four which serve for London two of them be for it as it is a City and two other as it is a County tho' elsewhere it be not so But when two came first to be chosen or appointed for the rest of the Burrough or County I cannot find It seemeth by those Synods that were holden in the times of the Saxon Kings and by some after the Conquest that great numbers of the common people flowed thither For it is said in An. 1021. Cum quamplurimis gregariis militibus ac cum populi multitudine copiosa And An. 1126. Innumeraque Cleri populi multitudine and so likewise in An. 1138. and other Synods and Councils By what order or limitation this innumera populi multitudo came to these Assemblies it appeareth not Bartol that famous Civilian and Hottoman according with him thus expoundeth it in other places Nota quod Praesides Provinciarum coadunant universale Parlamentum Provinciae quod intellige non quod omnes de Provincia debent ad illud ire sed de omnibus Civitatibus deputantur Ambasiatores qui Civitatem repraesentant And Johan de Platea likewise saith Vbi super aliquo providendum est pro utilitate totius Provinciae debet congregari generale Concilium seu Parlamentum non quod omnes de Provincia vadant sed de qualibet Civitate aliqui Ambasiatores vel Syndici qui totam Civitatem repraesentent In quo Concilio seu Parlamento petitur proponi sanum ac utile consilium But our Burgesses as it seemeth in time of old were not call'd to consult of State matters being unproper to their Education otherwise than in matter of Aide and Subsidy For King John granteth no more unto them than ad habendum commune consilium regni de auxiliis assidâ—ndis if his Charter be so pointed that this clause belong to that of the Liberties granted to them which is very doubtful and seemeth rather to belong to that which followeth otherwise there are no words at all for calling them unto the great Councils or Parlaments if you so will term them of that time And yet further it is to be noted that this whole branch of his Charter touching the manner of his summoning a great Council was not comprised in the Articles between him and his Barons whereupon the Charter was grounded but gain'd from him as it seemeth afterward And that may be a reason why it is left out in the Magna Charta of Henry III. confirm'd after by Edward I. in such manner as now we have it The Charter of these Articles I have seen under his own Seal After the death of King John I find many of these great Councils holden and to be often named by the Authors of that time Colloquia after the French word Parlament but no mention in any of them of Burgesses saving that in An. Dom. 1225. Regis 10. it is said that the King held his Christmass at Westminster Praesentibus clero populo cum Magnatibus regionis and that the solemnity being ended Hugh de Burgo the King's Justice propounded to the Arch-Bishop Bishops Earls Barons aliis universis the losses the King had received in France requiring of them one XV th And in the year 1229. the King summoneth to Westminster Archiepiscopos Episcopos Abbates Priores Templarios Hospitalarios Comites Barones Ecclesiarum Rectores qui de se tenebant in capite about the granting a tenth to the Pope wherein those that held in capite are call'd as in Henr. II. to the Council of Clarendon and as the Charter of King John purporteth but no mention is here made of Burgesses THE ORIGINAL OF THE FOUR TERMS Of the Year By Sir HENRY SPELMAN Kt. Printed in the Year 1684. from a very uncorrect and imperfect Copy Now Publish'd from the Original Manuscript in the BODLEIAN Library Sir William Dugdale in his Origines Juridiciales Chap. 32.
not till the third day after the Octaves But Gervasius Tilburiensis who lived in Hen. II's time hath a Writ in these words N. Rex Anglorum illi vel illi Vicecomiti Jalutem Vide sicut teipsum omnia tua diligis quod sis ad Scaccarium ibi vel ibi in Crastino Sancti Michaelis vel in Crastino Clausi Paschae habeas ibi tecum quicquid debes de veteri firma nova nominatim haec debita subscript viz. c. By which it appeareth that the Term in the Exchequer as touching Sheriffs and Accomptants and consequently in the other parts began then as now it doth saying that the Statute De Scaccario 51. Hen. III. hath since appointed That Sheriffs and Accomptants shall come to the Exchequer the Monday after the feast of St. Michael and the Monday after the Vtas of Easter Which time not being ferial or Church-days is freely allow'd to Term business if the Octaves of St. Michael had no priviledge of which hereafter It is to be noted that the Term in the Exchequer hath one Return at the beginning of every Term before the first Return in other Courts excepting Trinity-Term viz. Crastino S. Michaelis in Michaelmass-Term Octabis S. Hilarii in Hilary-Term and Octabis or Clausum Paschae in Easter-Term And it seemeth that Crastino Trinitatis was so likewise in Trinity-Term before the Stat. 32. Hen. VIII And these returns or the space of eight days in which the Exchequer is open before the full Term which now we commonly call the beginning of the Term are counted to be Term-time as appeareth by the said Statute where it is thus enacted That Trinity-Term shall begin the Monday next after Trinity Sunday for keeping of the Essoignes Profers Returns and other Ceremonies heretofore used c. And that the full Term of the said Trinity-Term shall yearly for ever begin the Friday .... The end is certainly prefixed by the Canons and Laws aforesaid that it may not extend into Advent And it holdeth still at that mark saving that because Advent Sunday is moveable according to the Dominical letter and may fall upon any day between the twenty sixth of November and the fourth of December therefore the twenty eighth of November as a middle period by reason of the Feast and Eve of St. Andrew hath been appointed to it Howbeit when Advent Sunday falleth on the twenty seventh of November as sometimes it doth then is the last day of the Term contrary to the Canons and former Constitutions held in Advent and consequently void if custom help it not or for more security the Statute of 3. Edw. I. ca. 48. where the Bishops at the King's request admit Assizes and Inquests to be taken in Advent as it after shall more largely appear CHAP. XVI The later Constitutions of the Terms TO leave obscurity and come nearer the light it seemeth by the Statutes of 51. Hen. III. called Dies communes in Banco that the Terms did then either begin and end as they do now or that those Statutes did lay them out and that the Statute of 36. Edw. III. cap. 15. confirmed that use For the Returns there mentioned are neither other more or fewer than at this day CHAP. XVII How Trinity-term was alter'd and shortned TRinity-Term is alter'd and shortned by the Statute of 32. Hen. VIII chap. 21. which hath ordained it quoad sessionem to begin for ever the Friday after Corpus Christi day and to continue nineteen days whereas in elder times it began two or three days sooner So that Corpus Christi day being a moveable Feast this Term cannot hold any certain station in the year and therefore this year 1614. it began on St. John Baptist's day and the last year it ended on his Eve Hereupon tho' by all the Canons of the Church and former Laws the Feast of St. John Baptist was a solemn day and exempt from legal proceedings in Courts of Justice yet is it now no Vacation day when Corpus Christi falleth as it did this year 1614. the very day before it For that the Statute hath appointed the Term to begin the Friday next after Corpus Christi day which was the day next this year before St. John Baptist and so the Term must of necessity begin on Saint John Baptist's day This deceived all the Ptognosticators who counting St. John Baptist for a grand day and no day in Court appointed the Term in their Almanacks to begin the day after and consequently to hold a day longer deceiving many by that their errour But the aforesaid Statute of 32. Hen. VIII changed the whole frame of this Term For it made it begin sooner by a Return viz. Crastino Sanctae Trinitatis and thereby brought Octabis Trinitatis which before was the first Return to be the second and Quindena Trinitatis which before was the second now to be the third and instead of the three other Returns of Crastino Octabis and Quindena Sancti Johannis it appointed that which before was no Return but now the fourth and last called Tres Trinitatis The altering and abbreviation of this Term is declared by the preamble of the Statute to have risen out of two causes one for health in dismissing the Concourse of people in that contagious time of the year the other for wealth that the Subject might attend his Harvest and gathering in the fruits of the earth But there seemeth to be a third also not mention'd in the Statute and that is the uncertain station length and Returns of the first part of this Term which like an Excentrick was one year near to St. John Baptist another year far removed from it and thereby making the Term not only various but one year longer and another shorter according as Trinity Sunday being the Clavis to it fell nearer or farther off from St. John Baptist For if it fell betimes in the year then was this Term very long and the two first Returns of Octabis and Quindena Trinitatis might be past and gone a fortnight and more before Crastino Sancti Johannis could come in And if it fell late as this year 1614. it did then would Crastino Sancti Johannis be come and past before Octabis Trinitatis were gone out So that many times one or two of the first Returns of this Term for ought that I can see must in those days needs be lost CHAP. XVIII How Michaelmass-Term was abbreviated by Act of Parliament 16. Car. I. Cap. 6. THe last place our Statute-book affords upon this Subject of the limits and extent of the Terms is the Stat. 16. Car. I. Chap. 6. intituled An Act concerning the limitation and abbreviation of Michaelmass-Term For whereas by former Statutes it doth appear that Michaelmass-Term did begin in Octabis Sanctae Michaelis that Statute appoints that the first Return in this Term shall ever hereafter be à die Sancti Michaelis in tres septimanas so cutting off no less than two Returns from the ancient
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
the Canon led him no further being only De Clerico de Transgressione Forestae aut Parci alicujus diffamato and made to no other intent than to aggravate the censure of the Ecclesiastical Law which before was not sharp enough against Offenders in that kind But Johannes de Athon as great a Canonist and somewhat elder whom Linwood often citeth and relyeth upon as one well understanding the Ecclesiastical Constitutions and the Laws of England hath apparently condemned it in the place by me recited Yet is it to be noted that neither Athon nor Linwood intended to Gloss upon all the Constitutions of the Church of England but Athon only upon those of Otho and Othobon and Linwood beginning where Athon left upon those of Stephen Arch-bishop of Canterbury and his Successors There are therefore a great number of Canons and Constitutions of the Church of England which neither of these Canonists have either meddled with or so much as touched as also there be many Statutes in force which are no where mentioned in any of the Abridgements But Jo. de Burgo another English Canonist and Chancellour of Cambridge who wrote in Richard the Second's time taketh notice of this Canon and that Hunting was thereby forbidden to our Clergy-men as appeareth in his Pupilla Oculi part 7. ca. 10. m To go on The Apology saith That the Arch-bishop of Canterbury had formerly more than twenty Parks and Chases to use at his pleasure and by Charter hath Free-warren in all his lands Habutsse lugubre it seemeth the Wisdom of the latter times the more pâ—ty dissented from the former yet did not the former approve that Bishops should use them at their pleasure but as the Laws and Canons of the Church permitted For as they had many Parks and Warrens so had they many Castles and Fortresses and might for their safety dwell in them but as they might not be Souldiers in the one so might they not be Huntsmen in the other In like sort the Abbat and Monks of St. Alban's as Mat. Paris reporteth the case in An. 1240. pa. 205. had Free-warren at St. Alban's c. by grant of the Kings and recovered damages against many that enter'd into the same and Hunted for the having of it was lawful as appeareth in the Clementines Tit. de Statu Monast § Porro a Venatoribus But it is there expresly forbidden that either they should Hunt in it themselves or be present when others do Hunt or that they should keep Canes venaticos aut infra monasteria seu domus quas inhabitant aut eorum clausuras pa. 207. Radulphus de Diceto in An. 1189. saith That the Bishops of that time affected to get into their hands Comitatus Vice-Comitatus vel Castellarias Counties Sheriffwicks and Constable-ships of Castles but shall we think they either did or might use them in their own Persons as with Banners display'd to lead forth the Souldiers of their County or with Sword and Target to defend the walls of their Castles or with a white wand to collect the King's Revenues c. It is true that Walter Bishop of Durham having bought the County of Northumberland of William the Conquerour would needs sit himself in the County-Court but he paid dearly for it for his Country-men furiously slew him even sitting there Matt. Paris in An. 1075. So Hugh Bishop of Coventry exercised the Sheriff's place but was excommunicate for it as contra dignitatem Episc and so acknowledged his error Dicet in An. 1190. But every one will say It was a common thing in old time for Bishops to be Judges in secular Courts I confess it and think it godly and lawful as it was used at the first For the Bishop and the Earl sat together in the County-Court the Bishop as Chancellor to deliver Dei rectum and populum doâ—ere the Earl as Secular Judge to deliver rectum seculi and populum coercere as is manifest by the Laws of King Edgar and others But when the Bishops began to supply both places and to be meer Judges of Secular Courts then were they prohibited by many Canons And therefore Roger Bishop of Salisbury being importuned by the King to be his Justice would by no means accept it till he had obtained Dispensation not only from his Metropolitan the Arch-bishop of Canterbury but from the Pope himself as Dicetus affirmeth in An. 1190. and no doubt but others of wisdom did the like In those things therefore that Bishops did against Canons we must take no example to follow them for tho' their publick actions be manifest yet their dispensations and matter of excuse is for the most part secret Neither doth every thing done against a Canon produce Irregularity if some criminous mischance follow not thereon For the Record that relateth that the Bishop of Rochester was at his death to render to the Arch-bishop of Canterbury his kennel of Hounds as a mortuary and that the Law takes notice of it for the King sede vacante under the name of Muta canum and Mulctura I must as they say in the Law demand Oyer of the Record we shall otherwise spend many words in vain But that Dogs should be given for a Mortuary is against all likelyhood For a Mortuary is as an offering given by him that dieth unto the Church in recompence of his Tithes forgotten and it is a plain Text Deuter. 28. 18. Non offeres mercedem prostibuli nec pretium canis in domo Domini But if there be no other word to signify a kennel of Hounds than Muta canum and Mulctura the exposition may be doubtful tho' it come somewhat near it Freder II. Emp. in the Prologue to his second Book de Venatione speaking of an Hawks-mue saith Domicula quae dicitur Muta following the Italian Vulgar which cometh à mutando because the Hawk doth there change her coat And for the affinity between Dogs and Hawks it may be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 transferred to a Dog-kennel and whether to the Hounds themselves or no it is not much material For no doubt they that may have Parks and Warrens may have Dogs and Hounds for Hunting but every body that may have Hounds may not use them themselves as appeareth by that which I said before out of the Clementines and by the opinion of Justice Brudnel with the rest of the Judges 12. Henr. VIII fol. 5. where it is said a man may keep Hounds notwithstanding the Statute of 13. Ric. II. but he must not Hunt as he may keep Apparel of Cloth of Gold notwithstanding the Statute of Apparel but he must not wear it Besides Religious persons in ancient times were driven to have Dog-kennels for the King's Hounds for Rad. Niger in An. ..... saith that King Henry II. Abbates hypodromos canum custodes fecit After all this his Lordship is defended with the perpetual use of Hunting by Bishops in their Parks and by the particular examples of some eminent men his Predecessors
the shooting here mentioned seemeth not to be the long-bowe which stirreth the body and is profitable to health but that deadly Engine which imagineth mischief as a law the Cross-bowe whose force a man cannot mitigate as in other weapons and is properly numbred amongst the instruments of War and therefore by a multitude of Canons prohibited to Clergy-men so that they may not use them pro justitia exercenda as appeareth by the Constit of Othob Tit. de Clericis arma portan nor equitantes per loca periculosa as it is in the Gloss upon the Decret of Gratian p. 992. where the Text is Clerici arma portantes usurarii excommunicentur But I have gone the length of my tedder I mean as far as the Apologie leadeth me and therefore now manum de tabula The case of this Reverend and most Worthy Person deserveth great commiseration and tender handling for who can prevent such unexpected casualties Yet may the consequence prove so mischievous both to himself and those that are to receive their Consecration from him as of necessity it must be carefully look'd into and provided for Let me remember an ancient precedent even in one of his own Predecessors Stigand Arch-bishop of Canterbury in the time of the Conquest who because he had not Canonically received his Consecration but from the hands of Pope Benedict who stood Excommunicate and sacris interdictus was not only deprived himself by authority of a Council but also the Bishops and Abbots which had taken their Consecration from him Therefore the Bishops of Wells and Hereford foreseeing that evil to make all clear fetch their Consecration at Rome from Pope Nicholas Vitabant enim saith Flor. Wigorn. in An. 1070. à Stigando qui tunc Archiepiscopatui Doroberniae praesidebat ordinari quia noverant illum non Canonice Pallium suscepisse It is good to follow the counsel of Gratian in the like matter Consultius est in hujusmodi dubio abstinere quam celebrare ca. 24. 1716. But because we are fallen into a case wherein perhaps some extraordinary Consecration may be required let me also relate a strange Consecration used in the entrance of the Reign of Henry I. An. 1100. where Eadmere a Monk of Canterbury being elected by the Clergy and People of Scotland to be Bishop of St. Andrews with the great good liking of King Alexander and the Nobility Yet by reason of some discontentments the same King had conceived against the Arch-bishop of York within whose Province Scotland then was he would by no means agree that Eadmere should take his Consecration from that Arch-bishop and after much consultation how then it might otherwise be performed it was at last agreed that the Staff of the Bishoprick should be solemnly laid upon the Altar and that Eadmere taking it from thence should receive it as deliver'd him from God himself which accordingly was done This calleth to my mind another of like nature somewhat more ancient where Wulstan the good Bishop of Worcester both resigned his Bishoprick by laying the Staff thereof upon the shrine of St. Edward the Confessor by the agreement of a Council holden under Lanfranc and in like manner received the same again from thence in the presence of King William the Arch-bishop Lanfranc and many others not without some miracle as Matthew Paris writeth it in An. 1095. These as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And thus in this matter of Shooting If I have done as the Proverb saith Shot like a Gentleman that is fair tho far off it sufficeth I humbly crave pardon 19. Octob. 1621. Recep Apolog. â—5 Octob. praeced SOME Letters and Instruments Concerning The killing of Hawkins by Arch-bishop ABBOT A Letter written by his Majesty to the Lord Keeper the Bishops of London Winton Rochester St. Davids and Exeter Sir Henry Hobart Kt. Chief Justice of the Common-Pleas Mr. Justice Dodderidge Sir Henry Martin and Mr. Doctor Steward or any six of them whereof the Lord Keeper the Bishops of London Winton and St. Davids to be four IT is not unknown unto you what happened this last Summer unfortunately to our Right Trusty and our Right Well-beloved Counsellour the Lord Arch-bishop of Canterbury who Shooting at a Deer with a Cross-bow in Bramsil-park did with that shoot casually give the Keeper a wound whereof he died Which accident tho it might have happened to any other man yet because his Eminent Rank and Function in the Church hath as we are informed ministred occasion of some doubts as making the Case different in his Person in respect of the Scandal as is supposed We therefore being desirous as it is fit We should to be satisfied therein and reposing especial Trust in your Learning and Judgement have made choice of you to inform Vs concerning the nature of this Case And do therefore require you to take it presently into your consideration and the Scandal that may have risen thereupon And to certify Vs what in your Judgements the same may amount unto either to an Irregularity or otherwise And lastly what means may be found to redress the same if need be of all which points We shall expect to hear your Reports with what diligence and expedition you possibly may Dated at Theobalds 3. Oct. 1621. A Letter from the Lord Keeper to Arch-bishop Abbot intimating the Reception of his Majesty's Letter May it please your Grace MY Lord of Winchester my Lord Hobart Sir John Dodderidge Dr. Martin and my self having met this afternoon about a Letter sent unto us together with some others under his Majesty's Signet and finding the Contents thereof to require from us some information of the nature of an unfortunate Act which doth referr unto your Grace We thought our selves ty'd in all justice and respect to send your Grace as I do here inclosed a copy of his Majesty's Letter And to let your Grace understand that we are ready to receive from your Grace in writing all the qualifying circumstance of the Fact if any such there be omitted in this Letter that we may be better grounded to deliver our Opinions as is desired concerning the nature of this unlucky accident And we have appointed two of the clock in the afternoon upon Saturday next to be the time and this Colledge of Westminster to be the place of our meeting to receive what information of the Fact your Grace shall 〈…〉 unto us And ceasing to be further troublesome I shall 〈…〉 Your Grace's poor Friend and Servant Jo. Lane C. S. Westminst Coll. 〈…〉 of October 162â— The Arch-bishop's Answer My very good Lords I Thank you for sending me the Copy of his Majesty's Letter which concerneth the â—nhappy 〈…〉 that befell me in Hampshire I here inclosed send unto your 〈◊〉 a â—opy of the Verdict given up by the Jurors unto the Coroner as also a 〈…〉 of some circumstances of this Fact which are not expressed in that Verdict 〈◊〉 the first being already upon Oath it needeth not as I
alii creditum alius subtrahat ac praecipue Clericis quibus opprobrium est si peritos se velint disceptationum esse forensium ostendere But here we see that the Clergy even in those days had set their foot upon the business and I suppose that since that time they never pulled it wholly out again It is like the Eastern Nations adhering to the Empire did observe it But the Western being torn from it by the Northern Nations Saxons Goths and Normans took and left as they thought good Reâ—â—ardus King of the Western Goths about the year 594. tho' he retained the manner of the Civil Law in making Wills yet he ordained that they should be publish d by a Priest as formerly they had been His succâ—ssor Chindavinâ—us about An. 650. making a Law about a Military Will ordained that it should be examined by the Bishop and Earl and ratified by the hand of a Priest and the Earl As the Northern Nations I speak of the Goths the Saxons and Normans were of Neighbour and affinity in their Habitation Language and Original so were they also in their Laws and Manners Therefore as the Goths trusted to their Priests with the passing of Wills so did the Normans their Custom and Law was that Tout testament doit estre passe par devant le Curè ou Vicaire notaire ou tabellion en la presence de daux temotnâ—s idoines dâ— XX. ans accomplis non legataires That all Testaments shall pass before the Curate or Vicar c. where the Commentary noteth that it must be the Curate or Vicar of the same Parish where the Testator dwelleth And that Notary hath been adjudged to be a Notary Apostolick or Ecclesiastical So that the business was then with them wholly in the hands of the Clergy This ancient Norman use liveth to this day in many Towns of England The Parson of Castle Rising in Norfolk hath the Probat of Testaments in that Town And so hath the Parson of Rydon and the Parson of North-Wotton in North-Wotton To go back to our Saxon Ancestors I see they held a kind of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or similitude of Laws with their brethren the Goths and Normans And tho' I find no positive constitution among them in this point yet ab actis judicatis the supporters of the Common Law it self we may perceive what their Custom and Law was Elfâ—re who lived before the year 960. having made his Will did afterward publish the same before Odo the Arch-bishop of Canterbury Elfsy the Priest of Croydon and many other Birtrick and his wife in no long time after declared their Will at Mepham before Elfstane Bishop of Rochester Wine the Priest and divers other See a MS. Law of King Alured the Great who flourished An. 880. De eo quâ— terram testamâ—ntalem habet quam ei parâ—ntes sui dimiserunt ponimus ne illam extra cognationem suam â—â—ttere possit si scriptum intersit testamenti testes quod â—orum prohibitto fuerit qui haâ—c imprimis acquisiverint ipsorum qui dederint ei nâ— hoc possit hoc in Regis Episcopi testimonio recitetur coram parentela sua It is said in the Civil Law that the declaration of a Testament before the Prince omnium Testamentorum solennitatem superat Here the Bishop is joined with the King in cognisance of the Testament by the copulative but Mr. Lambard tho' I confess it agreeth not with the Saxon maketh it in the disjunctive coram Rege aut Episcopo as if it might be before either of them The Saxon is on Cyninges bisceopes geÆ¿itnysse in Râ—gis Episcopi testimonio Be it one or the other it cometh much to a reckning for the presence of the King was then represented in the County by the person of the Earl of the County as it is this day in his Bench by the person of his Judges And the Earl and Bishop sitting together in the Court of the County did as if the King and the Bishop had been there hear jointly not only the causes of Wills spoken of in this Law wherein the Bishop had special interest but other also that came before them And therefore in those days the extent of the Earl's County and the Bishop's Diocess had but one limit To this purpose is the Law of King Edgar Cap. 5. and the like of Canutus Cap. 17. Comitatus bis in anno congregatur nisi plus necesse sit in illo Comitatu sint Episcopus Comes qui ostendant populo justitiam Dei rectitudines seculi The Saxon is ðaere beon ðaere scyre biscop se Ealdorman Let the shire Bishop be there and the Alderman so then they called the Earl Thus both Ecclesiastical and Secular Causes were both decided in the County Court where by the Canons of the Church the Ecclesiastical Causes were first determined and then the Secular And many Laws and Constitutions there be to keep good correspondency between the Bishop and the Earl or Alderman And as both kind of justice were administred in the County Court so were they also in the Hundred Court in which course they continued in both Courts 'till the very time of the Conquest as it seemeth and almost all his time after But about the eighteenth year of his Regn by a Common Council of the Arch-bishops Bishops Abbots and Princes of the Kingdom which we now call a Parliament he ordained as appeareth in a Charter of his then granted to Remigius Bishop of Lincoln Vt nullus Episcopus vel Archidiaconus de legibus Episcopalibus amplius in Hundred placita teneat nec causam quae ad regimen animarum pertinet ad judicium secularium omnium adducant sed quicunque secundum Episcopales leges de quacunque causa vel culpa interpellatus fuerit ad locum quem ad hoc Episcopus ei elegerit nominaverit veniat ibique de causa vel culpa sua respondeat non secundum Hundred sed secundum Canones Episcopales leges rectum Deo Episcopo suo faciat c. What ensued upon this and how the Bishop and Earl divided their Causes and Jurisdiction appeareth not That of Wills belonged either wholly to the Earl as Rector Provinciae by the Constitution of Theodosius or as much to the Earl as to the Bishop by the Laws of King Edgar and Canutus But the subsequent use must inform us what was then done upon it And thereby it seemeth that all went wholly to the Bishop and Clergy and that the Saxon custom was changed and the Norman introduced And that the name of Court Christian or Ecclesiastical sprung not up or was heard of till after this division For now the devising of Lands by Will after the Saxon manner was left and the goods themselves could not be bequeathed but according to the use of Normandy A third part must remain
to the wife a third part to the heir or children and a third part the husband might dispose by his Will The Norman manner appeareth at large by their Custumary and the English at that time briefly toucht by Glanvil But let the Will and the matter thereof be what it would It seemeth the Insinuation Probate and Cognisance of it belonged generally now unto the Bishop and Clergy tho' I must confess it be hard to find manifest proof thereof in those ancient days of the Conqueror and his Sons We must therefore discover as we can and very material in my understanding to that purpose is the testimony which I find in the ancient Laws of Scotland compos'd by the commandment of David their King who lived long in the time of King Henry I. Son of the Conqueror and of King Stephen the Conqueror Grand-child For those Laws have that similitude with ours of that time delivered by Glanvil as that in effect they be much what the same mutatis mutandis c. and very often totidem verbis with Glanvil It is there said under the title De causis ad Ecclesiam spectantibus c. Plaâ—â—tum de dotibus de testamentis ad forum Ecclesiasticum pertinet Dower was then thought to belong to the Ecclesiastical Court because it was a dependency of Marriages which doth belong to that Court. And the Rule was Qui est Judex in principali est Judex in accâ—ssorio But to our purpose it is plain that Testaments were then de â—ure Ecclesiastico in Scotland and doubtless even then also in England For not long after in Henry II's time Glanvil himself doth testifie as much saying that where the Testator nameth no Executor his next of kin possunt se ad hoc faciendum ingerere and might have a Writt to the Sheriff in the form there recited against them that detained any of the Goods and then addeth si quis autem Auctoritate hujus Brevis conventus dixerit contra Testamentum soil quod non suit rationabiliter factum vel quod res petita non fuerit ita ut dicitur legata tunâ— quidem placitum illud in Curia Christianitatis audiri debet terminari c. At this time Ecclesiastical Jurisdiction was grown to that exorbitant height and latitude that they neither doubted to convent the King himself to their Synod as Henry Bishop of Winchester and Legate did King Stephen to the Synod of Winchester nor to put him to corporal punishment under the name of pennance as the Monks of Canterbury did King Henry II. by whipping him In ordinary matters therefore no doubt but they extended their jurisdiction very far Yet all this while was not the decretum Gratiani come into the World In Henry III. time Bracton expresseth Wills and Testaments to belong to the Ecclesiastical Jurisdiction as Glanvil had done before in Henry II. and the Scottish Laws in Henry I. time Si de testamento oriatur contentio in foro Ecclesiastico debet placitum terminari quia de causa testamentaria sicut nec de causa matrimoniali Curia Regis non se intromittit c. I am now come to the lists of the modern Common Law and I dare venter no further FINIS ICENIA SIVE NORFOLCIAE Descriptio Topographica Ab HENRICO SPELMANNO Equ Aur. ICENIA ICeni nostri quibus nixi sunt initiis unde nomen asciverint nec proditum reor à veteribus nec rimatum feliciter à recentioribus Caesar hospes Cenimagnos vocat Ptolemaeus altero velut orbe dissitus Simenos Tacitus Praefecti Britanniae gener diuturnus in Gallia Belgica magistratus certiusque igitur insequendus Icenos Mitto qui Tigenos sine dubio perperam Non à Rege aliquo nuncupatos cum Camdeno censeo sed nec ut ille à forma loci quam Britanni inquit Iken id est cuneum vocant Certe Ptolomaei tabula comperta ratio quadrangulam potius justam quam cuneatam faciunt Mallem ego ab Ise fluvio celeberrimo Britannis Ichen totam regionem brachiis longe divaricatis transeuntem deducendos Sic apud Asiaticos Indi ab Indo apud Graecos Maeones à Maeonia apud Scythas Alani ab Alano apud Germanos Alsati ab Alsa apud Gallos Sequani à Sequana fluminibus Sic in ipsa Anglia Derbienses á Derwent Lancastrenses à Lan alias Lon fluvio ut ipse agnoscit Camdenus noster Northumbrenses ab Humbro Wiltoniae Comitatus à Guillo i. e. Willo fluvio ut perhibet Wigorniensis Nec obest s in c migratio cum in voce conservetur sonus Ptolemaeo litera quam alii tamen in g mutant Soliti autem sunt Britanni pro Graeco σ ch ponere ut Ichen pro 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Soch pro 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. sue Buch pro 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. bove Fluvii nomen ab Ise alias Iside gentium Dea sortitum videatur Priscis quippe in more fuit sylvas montes fluvios Numinibus consecrare eorumque appellare nominibus Britannos vero prae Diis aliis Cererem Proserpinam quae Isis dicitur inferna coluisse numina Strabo perhibet Hinc infernales sui ritus nocturna sacra Nox diem ducit per noctes dierum seriem per lunas mensium per hyemes annorum numerant Sic hodie à Seven-night pro VII diebus à Fort-night quasi fourteen-night pro XIV diebus dicimus Et majores nostri XX. XXX Xl. Winters pro totidem annis recitabant Hyemem autem ideo consecrabant infernalibus quod rerum semina sub hoc tempore ab eisdem existimabant conservari Hinc in fluviis nostris celeberrimis crebrum Isis nomen alias caelibis ut Brigantum Isis Isis Icenorum Isis Dobunorum alias conjugis ut Tham-isis Is-urium hujusmodi Sed Iceniae videamus terminos quibus includit Camdenus Norfolciam Suffolciam Cantabrigiae Comitatum Huntingtoniae Quod ut non probetur facile ita sat difficile est ad refellendum Ptolemaeus Simenos ponit inter Catieuchlanos Metarim aestum versus Boream Trinobantes versus Austrum Dobunos Coritanos versus Occidentem Germanicum Oceanum versus Orientem Sed quibus hi destituuntur invicem finibus non exponit Camdenus Coritanos locat ubi Ptolemaeus inversis sedibus Catieuchlanos mediterraneos scil ubi hic maritimos è contra Auctorem non laudat propter viri tamen eminentiam inficias non ibo ne crassa versans caligine falsis illudar imaginibus Haud tamen censeam priscos illos Britanniae populos adeo certis definitis limitibus disterminatos cum Scriptores Antiqui tractum potius quo versati sunt obscuriores populi quam tractuum limites designaverint Et qui fieri possit ut hodâ—â—rnis Comitatuum finibus dividerentâ—â— olim Bâ—â—â—anni veteres cum Comitatus ipsi a Saxonibus postea plerunque ab Aluredo non
that make me think that our wealth should continue with us better now than in times past it hath done are for that the Roman-coffers are not now glutted as they have been with English-treasure continually flowing into them For it is a world to consider the huge stocks of mony that those cozening Prelates have heretofore extorted out of her Majesties Kingdoms by their Antichristian and usurpt Supremacie As by Pope Innocent constraining King John to redeem his Crown at his hands and to take it for ever in farm for the yearly rent of 1000. marks to be paid to him and his Successors By causing Henry III. to maintain his wars against Frederick the Emperor and Conrade King of Sicil By drawing from our Kings many contributions and benevolences By laying upon their Subjects as well temporal as spiritual tenths and taxes in most ravenous manner and that very often So that in the time of Henry III. the Realm was by such an extream tax mightily impoverished as our Chronicles witness as also at many other times since and before For when the Pope was disposed to use mony he would tax our people as if they had been his natural Subjects by many Congratulations of the Clergy as 11000. marks at one pull to Pope Innocent IV. by private Remembrances from single Bishops as 9500. marks from the Arch-bishop of York to Pope Clement V. in An. 34. or 35. Edw. I. and from divers of them jointly 6000. marks to the foresaid Innocent By their rich Revenue of the First-fruits and Tenths as well of the Archbishopricks as of all other Spiritual Livings now reannext unto the Crown by the Parliament in the first of her Majesty By Installing Consecrating and Confirming Bishops By dealing Benefices By appellations to the Church of Rome By giving definitive Sentences By distributing heavenly Grace By granting Pardons and Faculties By dispensations of Marriages Oaths and such like By selling their blessed trumpery and many such other things that I cannot reckon whereof that merchandizing Prelate knoweth full well how to make a Commoditie according to the saying of Mantuan Venalia nobis Templa Sacerdotes Altaria sacra Coronae Ignis thura preces coelum est Venale Deusque All this consider'd and that the summs of mony by them receiv'd before the time of Henry VIII were according to the value of our Coin at this day three times as much as before is shewed you must needs confess that the fat of the Land larded the Roman dishes whilst our selves teer'd upon the lean-bones Besides it must not be forgotten that one tenth granted to the Pope impoverisht the Realm more than ten unto the King For what the King had was at length return'd again among the Subjects little thereof going out of the Land much like the life-blood which tho' it shifteth in divers parts yet still continueth it self within the body But whatsoever came into St. Peter's pouch was lockt up with the infernal key Et ab infernis nulla est redemptio England might lick her lips after that it came no more among her people Thus we were made the Bees of Holy-Church suffer'd to work and store our hives as well as we could but when they waxed any thing weighty his Legates were sent to drive them and fetch away the honey Yea if his Holyness were sharp sett indeed he would not stick to use a trick of Husbandry rather burn the Bees than want the honey I may tell you too his Legates and Nuncio's were ever trim fellows at licking of the hive as in our Chronicles you may read abundantly Viand You have made the matter so plain that I must needs grant that our treasure goeth not out of the Land in any comparable measure as it did in times past For as you say tho' these actions of the Low-Countries France Portugal and other places hath somewhat suck'd us yet I consider that we have ever had such a vent even in the several days of our Kings as in the time of Queen Mary King Edw. VI. King Henry VIII c. Selv. Their occasions indeed are best known unto us because many men living were witnesses thereof But I will recite unto you cursorily somewhat of the rest that you may the better be satisfy'd that it is no novelty in England And for to begin with Henry II. what store of treasure think you was by him and his wasteful sons whereof two namely Henry and John were Kings as well as himself daily carry'd into France Flanders Saxony Sicil Castile the Holy-land and other places sometime about their wars and turbulent affairs other some time for Royal expence about meeting feasting and entertaining the French King the Pope foreign Princes and such other occasions the particular whereof were too long to recite But we may well think that England must needs sweat for it in those days to feed the riotous hands of three several Kings spending so much of their time on the other side the Seas as they did The like was done by Richard I. about his ransome and business with the Emperor and Leopold Duke of Austria about his wars in France and the Holy-land where it is said that by estimation he spent more in one month than any of his predecessors ever did in a whole year By Henry III. about the affected Kingdom of Sicil and his wars in Gascoigne and other parts of France and in bounty to strangers He at one time sent into France at the direction of the Poictovins 30. barrels of Starling Coin for payment of foreign Souldiers and at another time these his wasteful expences being cast up the summ amounted to 950000. marks which after the rate of our allay encreaseth to By Edw. I. about his Actions of Guien Gascoigne France Flanders and the Conquest of Scotland and the striking of a League with Adolph the Emperor Guy Earl of Flanders John Duke of Brabant Henry Earl of Bar Albert Duke of Austria and others against the French King and Earl Jo. of Henault his partaker By Edw. III. about his Victories and designs in France and elsewhere which exhausted so much treasure as little or none almost remain'd in the Land as before is shewed By Henry IV. about the stirs of Britain and in supportation of the confederate faction of Orleance By Henry V. about his Royal Conquest of France By Edw. IV. in aiding the Duke of Burgundy and in revenging himself upon the King of France By Henry VII about his wars in France in annoying the Flemings in assisting the Duke of Savoy and Maximilian King of the Romans I need not speak of Henry VIII whose foreign Expences as they were exceeding great so they are sufficiently known to most men Neither have I more than lightly run over the rest who besides these that I have spoken of had many other foreign charges of great burden and much importance and yet not so much as once touch'd by me as Marriage of their Children with foreign Princes Treaties
Surrey 23. King Edgar's Charter of donation of certain Thane-lands 19. Another Charter granted by him to the Monastery of Hide near Winchester 20. By whose advice his Laws were made 61. King Edward the elder how he propos'd his Laws 61. The first that prohibited Law business on Festivals 77. King Edward the Confessor's Charter of donation to Thola 20. Several priviledges granted to the Cinque-Ports 26. His Laws by whom collected 61. His Constitution touching Festivals 79. Edward Earl of Norfolk and Marshal of England 168. Dyed in his minority ibid. Edwin son of Othulf gave certain lands to Arch-bishop Odo 29. Elfere a Saxon bequeath'd Snodland to the Church of St. Andrews 128. Publish'd his Will before Odo Arch-bishop of Canterbury c. 130. Elfstane Bishop of Rochester 130. Elfsy Priest of Croyden 130. Ellingham 161. Elmham 150. Erpingham 151. Erpingham Tho. Commissioner for executing the Office of Earl Marshal of England 169. Escheats the signification of the word 37. No feodal Escheats among the Saxons 37 38. Escuage what in the Empire 36. Neither its name nor rules us'd by the Saxons 37. Essoyning the manner of it not in use before the Conquest 27. King Ethelbald's Charter to the Monks of Croyland 22. Ethelbert the first Christian King of the Saxons 8. He causes his Laws to be put in writing ibid. He took somewhat from the Roman law 102 Etheldreda daughter of K. Alfred her dowry 8. King Etheldred ordain'd every eight Hides of land to find a man for the naval Expedition 17. His Charter of donation to Aethelwold 19. Another Charter granted by him to his Thane Sealwyne ibid. King Ethelstane whom he consulted in making his Laws 61. King Ethelwulfs Charter of priviledges 23. He divided his lands by Will among his three sons 128. Euricus King of the Goths 102. Exauctoratio Militis 185. Expeditio what it signifies in Latin 17. F Fakenham 150. Fasti or Law days among the Romans why so nam d. 72. Seldom two Fasti together 75. Fasti proprie ibid. Fasti intercisi ibid. Fasti Comitiales ibid. All the Fasti not apply'd to Judicature ibid. Fealty the definition of it 35. No Fealty but for a fee. 36. What manner of Fealty among the Saxons ibid. Felbrig 152. Felewell 161. Feodal words none among the Saxons 7 8 9. Feorme what it signifies in the Saxon tongue 15 Ferdwite 37. Festa majora vel principalia 91. Festivals how exempted from Law days 76. The differences of them 91. The Festivals of St. Peter and Paul 92. Of St. George 93. Of Gun-powder Treason ibid. A Feud what it is 1. It s general and particular definition 2. Feuds among the Jews ibid. Among the Gauls 3 Their original 4. Made perpetual and hereditary 5. When and how they became so ibid. Especially in England ibid. The difference between them and Benefices 6 9. The great growth of them ibid. No proper Feuds before the Conquest ibid. Feudal-law generally receiv'd in every Kingdom 5. It s youth infancy and full age 9. Where it had its original ibid. Feudatarii 9. Feudum militare nobile 4. Rusticum ignobile ibid. Feuda majora regalia ibid. The word Feudum or Feodum not us'd in K. Beorredus's days 9. Fideles who 4. Fidelity what 59. Fines for Licence of alienation 33. The Thane-lands free from them ibid. Not in use among the Saxons 34. Fitz-Alan Jo. Lord Maltravers Marshal of England 168. Fitz-Osborn Will. Lord Marshal to King William the Conquerour 165. Flegg 154. Flitcham 145. Flitchamburrough 52 145. Folcland what 12. Not alienated without licence 33 34. Free from homage 35. Ford-Park 110. Forests belong to the King alone 118. Subjects can have 'em only in custody ibid. Fouldage 162. Franc-almoin 2 7. Frank-tenements 12. Freeborgs or Tithings 51. Frekenham 153. G Garbulsham 158. Gavelkind what and why so call'd 12. Observ'd throughout all Kent 43. At first the general Law of all Nations ibid. Germans their Customs and Tenures carry'd into several Countries 5. They receiv'd the Roman Law 127. Gey-wood 143. Gilbert the third son of William the King's Marshal 166. Made Marshal of England ibid. Kill'd in a Tournament ibid. Gimmingham 152. Goths carry the German Laws into Spain Greece c. 5. They were the first that put their Laws in writing 102. Trusted Priests with the passing of wills 130 Government the ancient Government of England 49. c. 53. Grand-days in France and England 92. Grand Serjeanty 2. Grantesmale Hugh Marshal under K. William I. 165. Greeks from whom they had much of their ancient Rites 74 127. Gresham 152. Gressenhall 150. Grey Rad. de exauctoratur 185. Guthrun the Dane 61 77. H Hales 156. Harkela Andr. de exauctoratur 185. Harleston ibid. Hartlebury-park 110. Hawkins Pet Keeper of Bramsil-park wounded by Arch-bishop Abbot 109 c. Hengham 157. King Henry I. imprison'd the Bishop of Durham 62. His Constitution about Festivals and Law-days 81. King Henry II. ratify'd the Laws of Edw. the Confess and Will the Conquerour 81. Henry Bishop of Winchester conven'd K. Stephen to his Synod 132. Heribannum what 17. Heriots paid after the death of great Men. 31 32 To whom forgiven 32. The difference between them and Reliefs 32 33. By whom and when first ordain'd 32. What the word Heriot signifies ibid. Heriots and Reliefs issuing out of the same lands 33. No badge of lands held by Knight-service ibid. Heydon 151. High Courts see Court of Justice Hikifricus Pugil quidam Norfolciensis 138. Hilary-Term its ancient bounds 82 83. The end of it sometimes held in Septuagesima 95. Hockwold 161. Holkham 149. Holland Tho Marshal of England 168. Holland Tho. Earl of Kent Duke of Norfolk 169. Made Earl Marshal of England ibid. Holland Tho. Farl Marshal of England during the minority of John Mowbray 165. Holme in Norfolk 147 152 Homage by whom first instituted 5. Feodal homage 34. Of two sorts ibid. When begun in France and England ibid. The reason of it 34 35. Who are to do it 35. Usual in Soccage-tenure 35. As well a personal as a praedial duty ibid. Homines commendati 35. Hominium homagium what 34. Homagium ligeum ibid Feodale aut praediale ibid. Hoveden Roger when he wrote 31. Howard Sir John Kt. created Duke of Norfolk and Earl Marshal of England 17â— Slain in Bosworth-field ibid. Howard Tho. the son of the former Earl of Surrey 170. Imprison'd in the Tower ibid. Defeated the Scotch under K. Henry VII ibid Made Lord Treasurer of England and restor'd to his fathers dignities ibid. Kill'd James IV. K. of Scotland in battel ib. Sent Ambassadour into France ibid. Made Vice-Roy of England ibid. Where he dy'd ibid. Howard Tho. the fourth Duke of Norfolk of that name and Earl Marshal of England 1â—1 Howard Tho. the Grand-son of the former Earl of Arundel and Surrey ibid. The first Earl of England ibid. Made Earl Marshal for life ibid. Hugh Bishop of Coventry exercis'd the Sheriffs place 116. Excommunicated ibid. De Humâ—z
139. Tylney 138. Tylney-smeeth ibid. V Vacation what 72. A particular Vacation appointed by the Longobards 84. Valvasini 58. Valvasor 16 17 58. Vassalagium what 34. Vassalli 3 9. Venatio clamosa quieta aut modesta 109 114. Villanus what it signifies in Latin 14. W De Waceio Radulphus Princeps militiae Normannorum 165. Wallington 14â— Walpole 138. Walsham 153. Walsingham 149. Walsoke 138. Walter Arch-deacon of Oxenford 100. Walter Bishop of Durham bought Northumberland 116. Sate himself in the County Court ibid. By whom kill'd ibid. Walter Marshal of England the fourth son of William the King's Marshal 166. When he dy'd ibid. Walton 138. Walworth Sir Will Lord Mayor of London 168. Wapentakes 50. Watton 161. Waxham 153. Wardship no profits arising from it in the Saxons time 25. The original of its name ibid. Wardship in Scotland 27. Warenna Guil. de 19â— Were or Weregild what 15. West-acre 141. West Saxon-Law 49. Wic what it signifies in the Saxon tongue 156. Wichingham 151. Wigenhall 138. William the Conquerour transfer'd his Country customs into Ireland 5. Makes Feuds and Tenures hereditary there ibid. Priviledges granted by him to the Cinque-Ports 26. Gave certain lands to Baldwin Abbot of St. Edmund s-bury 45. His Laws made by the consent of the Bishops and Barons 61. His Constitution concerning Festivals and Law days 8â— Made a Law that no man should be put to death for any crime 82. Laws of Scotland Reg. Maj. 131 Laws Saxon in the King's Library MS. 17. Lind. Cland. Despons 80. Littleton Justice 6. His Tenures 35. Longobard-laws 89 131. Loyseau de Seigneurs 13 92. Ludovici Pii Exauctoratio 185. Vita 185. Lyndwood 109. M Major Joh. 27. An ancient Manuscript of Saxon Laws in the King's Library 17. Marculphus 9 128 129. Matthew Paris 11 62 71 116 118 12â— 138 151 152 166 167. Merula 5. N Neapolitan and Sicilian Constitutions 10 80. Norman Customs 30 80. Novella of Constantine Porphyrogenneta 36. O Osbertus 99. Oswald Bishop of Worcester 4 P Pancirollus 148 154 Pasquier 13. Paulus Diaconus 84. Pausanias 3. Philo Judaeus 75. Placita Coronae 60. de Platea Joh. 64. Plinius 138. Polydorus Virgilius 62 71. Prosper 93. R Radevicus de Gest Frid. I. 82. Radulphus Niger 90 117. Ramsey-Abbey MS 29 53 128 139 140 146. Rastal 86. S Selden 26. Sigonius 127. Skeneus 28. Smith Sir Tho. 6 75. Soto 109 112. Spelman's Glossary 1 3 12 15 Codex legum 96. Spelmans Concilia Britannica 8 17 18 23. Sprott a Monk of Canterbury 45. Statius 84. Stow. 147 154 168 186 213. Suarez 109. Suecus Gravius 3. Synod of Eanham 78. T Tabienus 90 91. Tacitus 3 4 15 35 51 59 74 127 149. V Vegetius 147. Vincent 168 169. Virgilius 93. W Walsingham Hypodigma Neustriae 82 92 151 167. Waraeus 140. K. William I's Laws 82 84. William of Malmsbury 119 145. Y York Herald 168 169. FINIS 1 Pag. 188. 2 Pag. 208. 3 Pag. 212. Durham-house Birth 1 Praef. ad Gloss Edit 1687 by J. A. Education 2 Praef. ad Gloss 3 Letter against Impropriations printed among the Treatises publisht by Jer. Stephens 1647. 4tâ— Sent to Lincoln's Inn. Marriage 1 2 Jac. 1 Employments 2 Hacket Life of Bishop Williams Part 2. pag 93. Knighted Came to live in London 1 Pref. to the Gloss Study of our ancient Historians 1 Law-Terms Chap. 8 in MS. Oxon Glossary 1 Praef. ad Gloss 2 Brady Answ to Mr. Petit pag. 229. The second part of the Glossary 1 Mr. Petit's Jani Anglorum facies Nova p. 219. 265. And the answer to it by Dr. Brady pag. 229. 1 Brady pag. 229. Councils 1 Praef. ad Concil Vol. I. 〈…〉 Councils 1 〈…〉 Council The second Volume of the Councils 1 Life of Mr. Somner 2 Mr. Nicolsons English Library part 2. pag. 43. 1 〈…〉 Asâ—mol Oxon 〈…〉 1 Pag â—24 Larger Work of Tithes The History and Fate of Sacriledge MS 2 Ath. Oxon p. 230. Part 2. Codex Legum Veterum MS. De Sepultura Aspilogia Book of Abbreviations 〈…〉 1 Pref. to that Book 〈…〉 〈…〉 1 Dedicat. ad Tho. Adamsium ante Bedam Acquaintance Children 3 Praef. ad Concil T. 1. 2 Camd. Ep. 226. 〈◊〉 Spelman Clement Spelman 1 Wood At h Oxon. p. 511. part 2. 〈…〉 〈…〉 dâ—finitâ—â—n of a 〈◊〉 Th◠〈…〉 1 Cujac in praefat ad lib. 1. feud p. 10. seq 2 Cujac ad lib. 3. feud tit 1. p. 178. Instances of Feuds among the 〈◊〉 3 1 Chron. â—hap 23 2â— 4 Ibid. Cap. 23. 5 Cap. 27. 1 Num. 21. 14. 1 Kings 13. 17. 2 Lib. de Phocid p. 118. Among the Gauls 3 Bell. Gall. lib. 6. p. 118. Ambactâ— 4 Bell. Gall. p. 184. 5 Ibid. p. 124. 6 Genes 14. 14. 7 Germ. Mor. p. 129. 8 Cujac ad Constit Lotharii feud lib. 5. p. 284. 9 Bell. Gall. lib. 6. p. 120. 10 Germ. Mor. 11 Bell. Gall. p. 121. 12 In Epist ad Bon. Vulcan Vid. Bellagines in Glossario nostro 1 Cujac in prâ—â— aâ— lib. p. 1. 2 Cujac ad liâ— 1. feud p. 21. 3 Vid infra Chap. â—6 Tenuâ—eâ—â—â—r Liâ—e How Feuds became hereditary Feuds hereditary in England 1 Comment in consuet Fâ—â—d Cap. 1. 2 Rex Mediolan lib. 3. 3 Gunt p. 409. 1 Aâ— lib. 1. Feud Tit. 1. p. 21. The great growth of 〈◊〉 â—s to title 2 Cujac Feud lib. 3. p. 180. 3 Ibid. 4 Lib. 1. p. 7. 5 Feud lib. 1. p. 5. 6 〈◊〉 3. â— 5. 〈◊〉 437. No proper Feuds before the Conquest What Tenures were in use among the Saxons Tenures when first used Translation of Saxon Charters No Feodal words among the Saxons The charter of Beorredus examined 1 Hist Lib. 2. c. 5. Saxon Charters in the Saxon tonguâ— 2 Concil Brit. p. 378. 1 In praesatione illius Libri Feudum not in use in Beorredus's days 2 Chap. 20. 21. 3 Ad Marculâ— p. 470. 4 P. 550. 5 Prooem ad lib. Feud p. 7. Feuda and Beneficia 1 Lib. 1. Tit. 65. c. 2 Lib. 3. Tit. 21. c. 3 Norm Reform p. 4. 4 In Gul. Rege No Tenures in Capite among the Saxons Tenure in Capite of two sorts 1 Lib. Ramsey f. 42. d. §. 279. 2 Pap. 157. Distinction of persons among the Saxons Lands among the Saxons Bocland 1 Vid. Gloss in Verb. Foresta Folcland Inland 2 Ing. Sax. p. 864. Outland 3 Praef. ad libr. Fend p. 12. 4 Itinerar Cant. p. 495. Earl no title of dignity anciently 1 Asser de gest Alfredi p. 21. 2 Ibid. No Earldoms hereditary Earldoms in France 3 Loyseau â—e Seignier c. 5. p. 106. lin â—lt Ceorls 1 Cap. 70. Ceorls 2 P. 116. 3 De Mor. Germ. p. 132. 4 Cap. 65. 5 Fol. 55. C. 6 Cap. de Weregild 7 Ll. Aethelst ibid. Earls capable of Knight's-Fees Thane what Thâ— quality of Thanes 1 Hist Seâ—â— Lib. 6. 2 Itâ—n Cant. p. 502. 1 Cap. de dignitate hominum f. 163.
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