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
Reliquiae Spelmannianae THE POSTHUMOUS WORKS OF Sir HENRY SPELMAN Kt. Relating to the LAWS and ANTIQUITIES OF ENGLAND Publish'd from the ORIGINAL MANUSCRIPTS With the LIFE of the AUTHOR Sine dubio domus Jurisconsulti est totius oraculum Civitatis Cicero OXFORD Printed at the THEATER for Awnsham and John Churchill at the Black-Swan in Pater-Noster-Row LONDON 1698. Imprimatur JOH MEARE VICE-CAN OXON Jan. 17. 1698. TO THE Most Reverend Father in God THOMAS LORD ARCH-BISHOP OF CANTERBURY PRIMATE of All ENGLAND And METROPOLITAN And one of his Majesty's most Honourable Privy Council MY LORD I BEG leave to lay before your Grace these Posthumous Discourses of Sir Henry Spelman promising them a favourable reception both for their own worth and for the sake of their Author He was a Person endow'd with those excellent Qualities which never fail to recommend others to your Grace's good opinion and esteem A Gentleman of great Learning and a hearty Promoter and Encourager of it In his Temper Calm and Sedate and in his Writings Grave and Inoffensive a true lover of the Establisht Church and a zealous maintainer of her Rights and Privileges In which respect the Clergy of this Nation were more particularly engag'd to Him because being a Lay-man and so not lyable to the suspicion of Prejudice or Interest his Reasonings carry'd in them a greater weight and authority than if they had come from one of their own Order I might add as some sort of excuse for this Trouble that He had the honour to be particularly respected by two of your Grace's Predecessors and some of his Posthumous Works by a third Arch-bishop Abbot and his immediate Successor were the chief Encouragers of the First Volume of his Councils and after his death the Second Part of his Glossary was publisht by the procurement of Arch-bishop Sheldon So that these Papers have a kind of hereditary right to your Grace's Protection All the share that I have in this Work is the handing it into the World and to make the first Present to your Grace would be no more than a decent regard to the Eminence of your Station though I had no particular obligation to do it But in my Circumstances I should think my self very ungrateful if enjoying so much Happiness under your Grace's Patronage I should omit any opportunity of expressing my Thankfulness for it Especially since such small Acknowledgements as this are the only Returns that I can ever hope to make for the Encouragement which You daily afford to Your GRACE'S most obliged and most dutiful Servant EDMUND GIBSON THE PREFACE I Shall not make any Apologie for the publication of these Treatises They seem'd to me to be very useful towards a right understanding of the Laws and Antiquities of England and I hope they will appear so to others too Nor need I endeavour to recommend them to the world any otherwise than by shewing them to be the genuine Labours of Sir H. Spelman whose Learning Accuracy and Integrity are sufficiently known The first of them concerning Feuds and Tenures in England was written in the Year 1639. and is printed from a fair Copy in the Bodleian Library corrected with Sir Henry Spelman's own hand The Occasion of writing it was the Great Case of Defective Titles in Ireland as may be gathered in some measure from the hints that our Author has given us but is much more evident from the Case it self printed afterwards by order of Thomas Viscount Wentworth the then Lord Deputie The Grounds thereof with the Pleadings and Resolutions so far as they concern the Original of Tenures were in short thus The several Mannours and Estates within the Counties of Roscomon Sligo Mayo and Gallway in the Kingdom of Ireland being unsettl d as to their Titles King James I. by Commission under the Great Seal dated the 2d day of March in the 4th Year of his Reign did authorize certain Commissioners by Letters Patents to make Grants of the said Lands and Mannours to the respective Owners Whereupon several Letters Patents to that effect passed under his Majesties Great Seal by virtue of the said Commission for the strengthening of Titles that might otherwise seem defective And afterwards in the Reign of King Charles I. upon an Enquirie into his Majestie 's Title to the Countie of Mayo there was an Act of State publisht commanding all those who held any Lands in that County by Letters Patents from the Crown to produce them or the Enrollment thereof before the Lord Deputie and Council by a certain day To the end that they might be secur'd in the quiet possession of their Estates in case the said Letters were allow'd by that Board to be good and effectual in Law In pursuance of this Order several Letters Patents were produc'd and particularly the Lord Viscount Dillon's which last upon the perusal and consideration thereof by his Majestie 's Council were thought to be void in Law And therefore it was order'd by the Lord Deputie and Council that the doubt arising upon the Letters Patents should be drawn up into a Case and that Case to be openly argu'd at the Council-Board The Case was drawn up in these words King James by Commission under the Great Seal dated the second day of March in the fourth year of his Reign did authorize certain Commissioners to grant the Mannour of Dale by Letters Patents under the Great Seal of this Kingdom to A. and his heirs and there is no direction given in the said Commission touching the Tenure to be reserv'd There are Letters Patents by colour of the said Commission pass'd unto A. and his heirs to hold by Knights Service as of his Majesties Castle of Dublin Here it was agreed on all hands that the Letters Patents were void as to the Tenure and that the Commissioners had acted beyond their Commission in reserving a mean Tenure to the prejudice of the King when they ought either to have reserv'd an express Tenure by Knight's Service in Capite or have mention'd no Tenure at all but have left the Law to imply a Tenure in Capite The question therefore was Whether the deficiency of the Tenure did so far affect the Grant as wholly to destroy the Letters Patents Or Whether the Letters Patents might not be good as to the Land and void only as to the Tenure The Case was argu'd several days by Counsel on both sides and was afterwards deliver'd up to the Judges who were requir'd by the Lord Deputie and Council to consider of it and to return their Resolution But upon private Conference not agreeing in their Opinions it was thought necessary for publick satisfaction to have it argu'd solemnly by them all which was accordingly done And when it came to be debated whether the reservation of a Tenure so different from that intended and warranted by the Commission could make void the whole Grant this happen'd to lead them to a more general Enquirie What the reservation of a Tenure is
that succeeded and out of his purse The Heriot whether the son or heir enjoy'd the land or not the Relief by none but him only that obtain'd the land in succession The Heriot whether the land were fallen into the Lord's hands or not the Relief in old time not unless it were fallen and lay destitute of a Tenant whose taking of it up out of the Lord's hands was in that sense called Relevium or Relevatio a taking up of that was fallen according to the French word Reliefe Bracton well observ'd the difference saying Fit quaedam praestatio quae non dicitur Relevium sed quasi sicut Heriotum quasi loco Relevii quod dari debet aliquando ante sacramentum fidelitatis aliquando post Hotoman saith Relevium dicitur honorarium munus quod novus Vassallus Patrono introitus causa largitur quasi morte alterius Vassalli vel alio quo casu feudum ceciderit quod jam à novo sublevetur Nov. Leo. 13. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 nominat I stand the longer herein for that not only the Report but even Doomsday it self and generally all the ancient Monkish writers have confounded Heriots and Releifs Yet might I have saved all this labour for nothing can make the difference more manifest than that we often see both of them are together issuing out of the same land But when all is done neither is Heriot nor Releif any badge of land holden by Knight's-service or in Capite for both of them are found in lands of ordinary Socage Yet I confess that Bracton saith de soccagio non datur Relevium and a little before de soccagio non competit domino Capitali Custodia nec homagium ubi nulla Custodia nullum Relevium sed è contra But this serveth my turn very well for that they in the Report having fail'd to prove that Releifs were in use in the Saxons time whereof they affirm'd they had full testimony it now inferreth on my behalf that if Releifs and Wardships were not in use among the Saxons that then also Tenure by Knight-service was not with them Besides all this the Heriot was a certain duty and settled by Law the Relief so various and uncertain as the Lords exacted what they listed for it when it fell into their hands constraining the heir of the Tenant as it were to make a new purchase of their Feud whereupon the Feudists called this Releif not only Renovatio and Restauratio feudi in Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 turning or bringing back of the Feud to the former condition or proper nature of it but also Redemptio a ransoming of it out of the Lord's hands That it thus stood with us in England by and by after the Conquest appears by that we have shewed before out of the Magna Charta of Henry I. CHAP. XIX No Fines for Licence of Alienation TOuching Fines for Licence of Alienation it is not said what kind of Tenants among the Saxons did pay them nor for what kind of land they were paid The Thane-land hereditary is apparently discharg'd thereof by the ordinary words of their Charters before mention'd where 't is said that the owners of lands may give and bequeath them cuicunque voluerint and that freely ab omni munduali obstaculo Doomsday also as we here shewed doth testifie as much and so doth the very word Alodium which the ancient Authors attribute to these lands So that the Thane-lands doubtless were free both from the Fine and Licence But as touching Folcland and land holden at will of the Lord tho' continued in ancient time to their children after the manner of Copy-holds it is no question but that they might both have Licence for aliening such lands and also pay consideration for it as our Copy-holders do at this day I find that one Brictrick in the time of King Etheldred about the year 984. bequeath'd legacies of good value unto his Lord's wife to intreat her Husband that this Brictrick's Will whereby he had devised many lands and goods to Monasteries and divers men might stand And that Thola the widow of Vrke a Thane of Edward the Confessor obtain'd licence from the same King Edward that she might devise both her lands and goods to the Monastery of Abbotsbury But of what nature these Licences were whether to alienate the land or to make a Will or to give the land to Monasteries as in Mortmain I cannot determine If they only intended alienation then I understand them only of Lands holden according to the custom of the time at will of the Lord or Folcland Yet in that Thola's Licence was as well to bequeath her goods expresly as her lands the Licence seemeth to be given therefore to make a Will which no man then could do if not a Thane Quaere But howsoever it be expounded it must not be extended to the Thane-lands or land hereditary for the reasons before alledged And as touching Fines for Licence of Alienation after our manner which the Report suggesteth they could not doubtless be in use among the Saxons for there are not found as I suppose here among us before the time of Edward I. and not established afterwards 'till 1. Edw. III. where the King granteth that from thenceforth lands holden in Chiefe should not be seized as forfeited which formerly they were for Alienation without Licence but that a reasonable Fine should be taken for the same See the Statute CHAP. XX. No Feodal Homage among the Saxons OUr word Man and homo in Latin have for many ages in old time been used by the German and Western Nations for a Servant or Vassal And from thence hominium and vassaticum afterwards homagium was likewise used for hominem agere to do the office or duty of a servant not to signifie Manhood as some expound it and so also Vassalagium But by little and little all these latter words have been restrain'd to note no more than our ceremonial homage belonging properly unto Tenures which I met not with among our Saxons nor any shew thereof in former ages unless we shall fancy that the Devil had it in his eye when he offered to give unto our Saviour all the Kingdoms of the world if he would fall down and worship him For here he maketh himself as Capital Lord our Saviour as the Feodal Tenant the Kingdoms of the world to be the Feud the falling or kneeling down to be the homage and the worshipping of him consisting as the Feodists expound it in six rules of service to be the Fealty Pardon me this idleness but from such missemblances rise many errors Homage as we understand it in our Law is of two sorts one more ancient than the other called homagium ligeum as due unto the King in respect of Soveraignty and so done more Francico to King Pipin by Tassilo Duke of Bavaria about the year 756. The other homagium feodale or praediale belonging to
viz. Towns or Mannours to the Lords thereof whom the Saxons called Theings after Barons Hundreds to the Lords of the Hundreds Trithings or Lathes to their Trithingreves Counties to their Earls or Aldermen and the larger Satrapies to their Dukes or chief Princes All which had subordinate Authority one under the other and did within the precinct of their own Territories minister justice unto their Subjects For the Theinge or Lord of the Town whom the Normans called a Baron had of old Jurisdiction over them of his own Town being as it were his Colony and as Cornelius Tacitus saith did Agricolis suis jus dicere For those whom we now call Tenants were in those ancient times but Husbandmen dwelling upon the soil of the Lord and manuring the same on such conditions as the Lord assigned or else such as were their followers in the wars and had therefore portions of ground appointed unto them in respect of that service which portion was thereupon called a Knights-fee for that a servant in the war whom the Saxons called a Knight had it allotted unto him as the fee or wages of his service Neither at the first had they these their fees but at the Lord's pleasure or for a time limited and therefore both these kinds of Military and Husbandmen dwelling upon the Town or Colony of the Lord were as in reason they ought under the censure and will of their Lord touching the lands they ocucpy'd who therefore set them laws and customs how and in what manner they should possess these their lands and as any controversy rose about them the Lord assembling the rest of his followers did by their opinion and assistance judge it Out of which usage the Court-Barons took their beginning and the Lords of Towns and Mannours gain'd the priviledge of holding plea and jurisdiction within those their Territories over their Tenants and followers who thereupon are at this day called Sectatores in French Suitres of suivre to follow But the Saxons themselves called this jurisdiction sacha and soca signifying thereby Causarum actionem and libertatem judicandi for sacha signifieth causa in which sense we yet use it as when we say For God's sake and soca signifieth liberty or priviledge as Cyriâ—socne libertas Ecclesiae But by this manner the Lords of Towns as ex conâ—â—etudine Regni came to have jurisdiction over their Tenants and followers and to hold plea of all things touching land But as touching cognizance in criminal matters they had not otherwise to meddle therewith than by the King's Charters For as touching the King's peace every Hundred was divided into many Freeborgs or Tithings consisting of ten men which stood all bound one for the other and did amongst themselves punish small matters in their Court for that purpose called the Lete which was sometime granted over to the Lords of Mannours and sometime exercised by peculiar officers But the greater things were also carryed from thence into the Hundred Courts so that both the streams of Civil justice and of Criminal did there meet and were decided by the Hundreds c as by superiour Judges both to the Court Baron and Court Leet also Edward the Confessor Ll. ca. 32. saith that there were Justices over every ten Freeborgs called Deans or Tienheofod that is head of ten which among their Neighbours in Towns compounded matters of trespasses done in pastures Meadows Corn and other strifes rising among them But the greater matters saith he were referred to superiour Justices appointed over every ten of them whom we may call Centurions Centenaries or Hundradors because they judged over an hundred Freeborgs The Lord of the Hundred therefore had jurisdiction over all the Towns of the Hundred as well in Criminal matters as in Civil and they that failed of their right in the Court Barons Tithings or Leets might now prosecute it here before the Lord of the Hundred and his followers called the Suitors of the Hundred which were the Lords and owners of lands within that Hundred who were tyed to be there at every Court which as appeareth by the Laws of H. I. ca. 8. was to be holden twelve times in the year that is once every month But especially a full appearance was required twice in the year in memory whereof the Suitors are at this day called at our Lady and Michaelmass Courts by the Steward of the Hundred These as I said before held piea of trespasses done in Pastures Meadows Corn and such like and of other strifes arising between Neighbour and Neighbour and as by and by also shall be shewed of Criminal matters touching the very life of a man Decrevit tum porro Aluredus c. King Alured then further decreed that every Free-man should be settled in some Hundred and appointed to some Freeborg or Tithing as did also Canutus Ll. par 2. cap. 19. and that the heads of these Tithings or Freeborg whom we now call Capitales plegii should judge the smaller matters as in Leets c. but should reserve the greater for the Hundred Court and those of most difficulty to the Alderman and Sheriff in the County Court Lamb. voc Centuria The order of which proceedings in the Hundred Court do there also appear out of the Laws of King Ethelred made in a great Assembly at Vanatinge Cap. 4. In singulis Centuriis Comitia sunto c. Let the Courts be holden in every Hundred and let twelve men of the elder sort together with the Reve of the Hundred holding their hands upon some holy thing take their oath that they shall neither condemn any man that is innocent nor quit him that is guilty And it seemeth by the Laws of Canutus par 2. cap. 16. 18. That a man was not to be delayed above three Court days from having his right for if he were he might then resort to the County and if he obtained it not there within four Courts then he might seek unto the King And no doubt but this Law opened a great gap for the carrying of matters from the Hundred and County Courts up to the King 's Court. The Jurisdiction also of this Court seemeth to be further abated by H. I. who tho' he establish'd the ancient manner of holding it yet pulled he from it some principal parts thereof as after shall appear in a Writ of his touching this and the County Court directed to the Sheriff of Worcester MS. Co. pa. inter 48. 49. The Thrithingreve or Leidgreve whom I take to be the same called in the Salic Laws Tungimus but doubt whether he or no that in our Laws of H. I. is called Thungrevius was an officer that had authority over the third part of the County or three or more Hundreds or Wapentakes whose Territory was thereupon called a Thrithing otherwise a Leid or Lath in which manner the County of Kent is yet divided and the Rapes in Sussex seem to answer the same And perhaps the Ridings also of Yorkshire
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
heirs upon every gift grant and alienation tho' no word were spoken of them It appeareth by the Feodal-law from whence all that part of our Common-law that concerneth Tee and Tenures hath original and which our Common-law also affirmeth that there was always due ..... Those that thus receiv'd their Territories from the King were said to hold them in Capite for that the King is Caput Regni and were thereupon call'd Capitanei Regis and Capitanei Regni otherwise Barones Regis the King's men Tenants or Vassals who having all the land divided amongst them saving that which the King reserv'd to himself as Sacrum Patrimonium were also call'd Pares Regni and were always upon commandment about the person of the King to defend him and his Territories in war and to counsel and advise him in peace either Judicially in matters of Law brought before the King in his Palace which in those days was the only place of Royal justice or Politically in the great affairs of the Kingdom Hereupon they were not only call'd Praetorianum consilium as belonging to the King's Palace but Magnum concilium Regis and Magnum concilium Regni For that in those times it belonged only to them to consult with the King on State-matters and matters of the Kingdom insomuch as no other in the Kingdom possessed any thing but under them And therefore as in Despotical Government the agreement or disagreement of the Master of the Family concluded the menial and the whole Family so the agreement and disagreement of the chief Lord or him that held in Capite concluded all that depended on him or claimed under him in any matter touching his Fee or Tenure To this purpose seemeth that in the Laws of Edward the Confessor ratified by the Conqueror Debet etiam Rex omnia ritè facere in regno per judicium procâ—rum regni These great Lords according to this Archetype of Government set them by the King divided their lands in like manner among their Tenants and followers First they assign'd a portion ad victum vestitum suum which they committed over to their Socmen and Husbandmen to furnish them with Corn Victuals and Provision for Hospitality and briefly all things necessary to their domestical and civil part of life The residue they divided into as many shares or portions as might well maintain so many Military men whom then they call'd their Knights and thereupon the shares themselves Knights-fees i. e. stipendia militaria And these Fees they granted over to each of their principal followers furnishing them with so many Knights for the wars These Grantees that receiv'd their Estates from the Barons or Capitanei and not from the King were called Valvasores a degree above Knights and were unto their Lords the Capitanei or Barones Regis as they the Capitanei were unto the King and did in like manner subdivide their lands among their Socmen and Military followers who in old time were call'd Valvasini whom I take to be the same at this day that are the Lords of every Mannour if not those themselves that we call Knights as owners of a Knights-Fee For in this the Feodal-law it self is doubtful and various as of a thing lost by Antiquity or made uncertain by the differing manners of several Nations Insomuch that Valvasores and Valvasini grew to be confounded and both of them at last to be out of use and no other Military Tenures to be known amongst us than tenere pâ—r Baroniam and tenere per feodum militare But in a Charter of Henr. I. it is said Si exurgat Placitum de divisione Terrarum si interest Barones meos Dominicos tractetur in Curia mea si inter Vavassores duorum Dominorum tractetur in Comitatu c. Where the Valvasores were also and the Barons themselves Suitors and Attendants Bracton mentioneth them in Henry III's time to be Viri magnae dignitatis Nor was their memory clean gone in Richard II's days as appeareth by Chaucer Yet do I not find in any of our ancient Laws or Monuments that they stood in any classick kind of Tenure other than that we may account the Baron Vavasor and Knight to be as our Lawyers at this day term them the Chief Lord Mesne and Tenant But herein the Feodal-law of our Country differ'd from that of Milan and other parts For there the Valvasini could invest which we call infeosse none under them in fee that is to hold of them by Knights-service And with us every Tenant Par aval might in infinitum till the Statute of Quia Emptores Terrarum enfeoffe another by Knight-service and to do all the services unto him that he did to his Mesne Lord. So that by this means a line of Knights-services might be created of a dozen yea twenty Mean-Lords and Tenants wherein every of them might have his prochine Tenant obliged unto him in the duties and services that his Lord Paramont which held of the King was to do and yeild unto the King himself for the same lands viz. Honour Ward Sustenance   Safety Marriage  give keep  Attendance Relief Counsel to Aid Defence of his Person Tribute Fidelity  Defence of his Patrimony     All which in ancient time while the Feodal-law flourished were well understood to be comprehended under the profession of Homage and the oath of Fidelity which every Feodal Tenant or as others call him Vassal usually did unto his Lord. Honour promis'd by the Tenant upon his knees in doing Homage which tho' it be the greatest and most submiss service that a Freeman can do unto his Lord yet the profession of it to the meanest subject is as ample and submiss yea in the very same words that to the King himself Attendance to follow and attend him in the war at his own charge and in peace with suite of Court Therefore Tacitus calleth them Comites Defence of his person for if he forsook his Lord being in danger it was forfeiture of life land and all he had Defence of his Signiory that nothing of his lands rents or services were withholden or withdrawn Profit by Ward Marriage and Relief as they fell Tribute by way of Aid to make his eldest son a Knight to marry his eldest daughter ransom himself being taken prisoner yea in some places to be an hostage for his Lord. Sustenance that being faln into poverty according to that in the Canon law spoken of a Patron Alatur egenus Counsel and Advice in which respect the Tenant was bound ordinarily once in every three weeks to come to his Lord's Court and there as a Judge with other of his Peers to censure the causes of his Signiory and to direct his Lord as the cause occurrent did require and always to keep his counsel This to the meanest Lord was in the nature of the King 's Great Court or Counsel call'd afterward a Parlyment Fidelity for
to the Grant whether it be a part of the Grant and the modus concessionis or whether it be a distinct thing and Aliud from the Grant For so the Printed Case represents their Opinion if the Reservation of the Tenure and the Grant of the Land be aliud aliud two distinct things in the consideration of the whole Grant made and the authority given by the said Commission for the making thereof then the Patent may be void as to the Tenure and yet good for the Grant of the Land But if the Reservation of the Tenure be incident unto the authority and included within it and the Reservation of the Tenure and the Grant of the Land make up but one entire Grant so that the one is a part of the other and the Reservation of the Tenure be Modus concessionis then the granting of the Land reserving a diverse or contrary Tenure to that which their nude authority did warrant them to reserve is a doing of Idem alio modo and so the whole Act is void They who pleaded for the validity of the Letters Patents as to the Lands and their being void only as to the Tenure urg'd among other arguments That Tenures in Capite were brought into England by the Conquest but Grants were by the Common-Law and therefore Grants being more ancient than Tenures the Tenure must of necessity be aliud from the thing granted And to prove that this Tenure came in with the Conqueror they cited Mr. Selden in his Spicileg ad Eadmerum p. 194. where he hath that out of Bracton de Acquir Rerum Dominio b. 2. Forinsecum servitium dicitur Regale servitium quia spectat ad Dominum Regem non ad alium secundum quod in Conquestu fuit adinventum But this Argument and the Authority were both over-ruld and it was affirm'd that Tenures were not brought into England by the Conqueror but were common among the Saxons Their Answer to Mr. Selden's Opinion with the Reasons upon which they grounded their position I will transcribe at large from the Printed Case the Book being very scarce and this the only Point wherein Sir Henry Spelman is concern'd It was answered that Mr. Selden in that place does barely recite the words of Bracton not delivering any Opinion of his own For in that Book cited pag. 170. and in his Titles of Honour the last Edition p. 612. We find that he was of another Opinion and that this Tenure was in use in England in the times of the Saxons What were those Thani Majores or Thani Regis among the Saxons but the Kings immediate Tenants of Lands which they held by personal service as of the Kings person by Grand Serjeanty or Knights-service in Capite The Land so held was in those times called Thain-land as Land holden in Socage was called Reveland so frequently in Dooms-day Haec terra fuit terra Regis Edwardi Thainland sed postea conversa est in Reveland Cokes Instit Sect. 117. After some years that followed the coming of the Normans the title of Thane grew out of use and that of Baron and Barony succeeded for Thane and Thain-land Whereby we may understand the true and original Reason of that which we have in the Lord Cromwels Case 2. Coke 81. That every Barony of ancient time was held by Grand Serjeanty by that Tenure were the Thain-lands held in the time of the Saxons and those Thain-lands were the same that were after called Baronies 'T is true the Possessions of Bishops and Abbots were first made subject to Knights-service in Capite by William the Conquerour in the fourth year of his Reign for their Lands were held in the times of the Saxons in pura perpetua Eleemosyna free ab omni servitio saeculari But he then turned their Possessions into Baronies and so made them Barons of the Kingdom by Tenure so that as to them this Tenure and Service may be said to be in Conquestu adinventum But the Thain-lands were held by that Tenure before As the Kings Thane was a Tenant in Capite so the Thanus mediocris or middle Thane was only a Tenant by Knights-service that either held of a mean Lord and not immediately of the King or at the least of the King as of an Honour or Mannour and not in Capite What was that Trinoda Necessitas which so often occurs in the Grant of the Saxon Kings under this Form Exceptisistis tribus Expeditione Arcis pontis exstructione See it in a Charter of King Etbeldred in the Preface to Cokes 6. Report c. But that which was after expressed by Salvo forinseco Bracton lib. 2. cap. 26. 35. 12. Edw. 1. Gard 152. 26. Ass 66. Selden Analect Anglobrit 78. And therefore it was said that Sir Henry Spelman was mistaken who in his Glossary verbo feudum refers the original of Feuds in England to the Norman Conquest It is most manifest that Capite Tenures Tenures by Knights-service Tenures in Socage Frank-almoigne c. were frequent in the times of the Saxons And if we will believe what is cited out of an old French Customary in a MS. Treatise of the Antiquity of Tenures in England which is in many mens hands all those Tenures were in use long before the Saxons even in the times of the Britains there it is said The first British King divided Britain into four parts And gave one part to the Arch-Flamines to pray for him and his posterity A second part he gave to his Earls and Nobility to do him Knights-service A third he divided among Husbandmen to hold of him in Socage The fourth part he gave to Mechanical persons to hold in Burgage But that Testimony was wav'd there being little certainty or truth in the British Story before the times of Caesar Neither would they make use of that which we are taught by William Roville of Alenzon in his Preface to the Grand Customier of Normandy that all those Customs among which these Tenures are were first brought into Normandy out of England by Edward the Confessor Besides that which hath been said we find Feuds both the name and thing in the Laws of those times among the Laws of Edward the Confessor cap. 35. where it is thus provided Debent enim universi Liberi homines secundum feodum suum secundum tenementa sua Arma habere illa semper prompta conservare ad tuitionem Regni servitium dominorum suorum c. Lambard Archaionom 135. This Law was after confirmed by William the Conqueror vid. Cokes Instit Sect. 103. As these Tenures were common in those times so were all the fruits of them Homage Fealty Escuage Reliefs Wardships For Releifs we have full testimony in the Reliefs of their Earls and Thanes for which see the Laws of King Canutus cap. 66 69. The Laws of Edward the Confessor cap. de Heterochiis And what out of the Book of Dooms-day Coke hath in his Instit Sect.
seqq a name not well agreeing with Feodal servitudes But it seemeth by divers Abby-books that some Estates for life which we call Frank tenements were also put in writing especially among the latter Saxons Yet were not these accounted bocland for they were laden commonly with many feodal and ministerial services whereas bocland as I said was free from all services not holden of any Lord the very same that Allodium descendable according to the common course of Nations and of Nature unto all the sons and therefore called Gavelkind not restrain'd to the eldest son as feodal lands were not at first but devisable also by will and thereupon called Terrae testamentales as the Thane that possessed them was said to be testamento dignus Folcland was terra vulgi the land of the vulgar people who had no estate therein but held the same under such rents and services as were accustomed or agreed of at the will only of their Lord the Thane and it was therefore not put in writing but accounted proedium rusticum ignobile But both the greater and the lesser Thanes which possessed Bocland or hereditary lands divided them according to the proportion of their estates into two sorts i. e. into Inland and Outland The Inland was that which lay next or most convenient for the Lord's Mansion-house as within the view thereof and therefore they kept that part in their own hands for supportation of their family and Hospitality The Normans afterwards called these lands terras dominicales the Demains or Lord's lands The Germans terras indominicatas lands in the Lord 's own use The Feudists terras curtiles or intra curtem lands appropriate to the Court or House of the Lord. Outland was that which lay beyond or out from among the Inlands or Demeans and was not granted out to any Tenant hereditarily but like our Copy-holds of ancient time having their original from thence meerly at the pleasure of the Lord. Cujacius speaking of this kind of land calleth it proprium feudum that is to say such land as was properly assigned for Feodal lands Proprium feudum est saith he extra curtem consistit in praediis As if he should say That land properly is a Feud or Feudal land which lyeth without the Demains of the Mannour and consisteth in land not in houses We now call this Outland the Tenants land or the Tenancy and so it is translated out of Biritrick's will in the Saxon tongue This Outland they subdivided into two parts whereof one part they disposed among such as attended on their persons either in war or peace called Theodens or lesser Thanes after the manner of Knights Fees but much differing from them of our time as by that which followeth shall appear The other part they allotted to their Husbandmen whom they termed Ceorls that is Carles or Churles And of them we shall speak farther by and by when we consider all the degrees aforesaid beginning with the Earl CHAP. VI. Of Earls among our Saxons AN Earl in the signification of Comes was not originally a degree of dignity as it is with us at this day but of Office and Judicature in some City or portion of the Country circumscribed anciently with the bounds of the Bishoprick of that Diocess for that the Bishop and the Earl then sat together in one Court and heard jointly the causes of Church and Common-wealth as they yet do in Parliament But in process of time the Earl grew to have the government commonly of the chief City and Castle of his Territory and withal a third part of the King's profits arising by the Courts of Justice Fines Forfeitures Escheats c. annexed to the office of his Earldom Yet all this not otherwise than at the pleasure of the King which commonly was upon good behaviour and but during life at most This is apparent by the severe injunction of King Alfred the Great labouring to plant literature and knowledge amongst the ignorant Earls and Sheriffs of his Kingdom imposed upon them That they should forthwith in all diligence apply themselves to the study of wisdom and knowledge or else forgoe their Office Herewith saith Asser Menevensis who lived at that time and was great with the King the Earls and Sheriffs were so affrighted that they rather choose insuetam disciplinam quam laboriose discere quam potestatum ministeria dimittere that is To go at last to the School of knowledge how painful soever rather than to lose their offices of Authority and degrees of Honour which Alfred there also declareth that they had not by Inheritance but by God's gift and his Dei saith he dono meo sapientium ministeria gradus usurpatis This is manifest by divers other authorities and examples in my Glossary in verbo Comes as the Reader if he please may there see Some conjecture that Deira and Bernicia in Northumberland and Mercia in the midst of England were Feudal and hereditary Earldoms in the Saxon times Those of Northumberland presently after their first arrival under Hengistus about the year 447. that of Mercia by the gift of Alfred the Great about the year 900. to Ethelredus a man of power in way of marriage with his daughter Ethelfleda but for ought I see it is neither proved by the succession of those Earldoms nor our Authors of Antiquity For my own part I think it not strange that there was not at the entry of the Saxons a Feudal and Hereditary Earldom in all Christendom As for this our Britain the misery of it then was such as it rather seemed an Anarchy and Chaos than in any form of Government Little better even in Alfred's days through the fury of the Danes tho' he at last subdued them for his time How soever three or four examples in five hundred years before the Conquest differing from the common use is no inference to overthrow it especially in times unsettled and tumultuous The noble Earldom of Arundel in our days of peace differeth in constitution from all the other Earldoms of England yet that impeacheth not their common manner of succession Loyseau and Pasquier learned Frenchmen speaking of the Dukes and Earls of France which England ordinarily followeth and sometimes too near the heels justifie at large what I have said shewing the Dukes and Earls in the Roman Empire from whose example others every where were derived were like the Proconsuls and Presidents of Provinces simple Officers who for their entertainment had nothing else but certain rights and customs raised from the people which we in England called Tertium denarium And that the Dukes and Earls of France were Officers in like manner but had the Seigneurie of their territory annexed to their Office so that they were Officers and Vassals both at once that is to say Officers by way of Judicature and Vassals whom we call Feodal tenants for their Seignories of Dukedoms and
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
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
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-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-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