p. 121. VIII Of the Original of Testaments and Wills and of their Probate to whom it it anciently belong'd p. 127. IX Icenia sive Norfolciae Descriptio Topographica p. 133. X. Catalogus Comitum Marescallorum Angliae p. 165. XI Dissertatio de Milite p. 172. De aetate Militari p. 174. De evocatis ad Militiam suscipiendam p. 175. De modo â—reandi Militem honoratum primo de Cingulo militari p. 176. Qui olim fiebant Milites p. 179. Qui possint militem facere p. 180. Judices etiam sub appellatione Militum censeri scil Equ esse Palatinos p. 182. De loco tempore Creationis p. 183. De Censu militari p. 184. Modus Exauctorandi Militem quod Degradare nuncupatur XII Historia Familiae de Sharnburn p. 187. XIII Familiae Extraneorum sive Lestrange accurata descriptio p. 200. XIV A Dialogue concerning the Coin of the Kingdom particularly what great treasures were exhausted from England by the usurpt Supremacy of Rome p. 203. XV. A Catalogue of the Places or Dwellings of the Arch-bishops and Bishops of this Realm now or of former times in which their several Owners have Ordinary Jurisdiction as if parcel of their Diocess tho' they be situate within the precinct of another Bishop's Diocess p. 211. THE Original Growth Propagation and Condition OF FEUDS and TENURES BY KNIGHT-SERVICE In ENGLAND CHAP. I. The occasion of this Discourse and what a Feud is IN the great case of Tenures upon the Commission of Defective Titles argued by all the Judges of Ireland and published after their resolution by the commandment of the Lord Deputy this year 1639. it fell out upon the fourth point of the Case to be affirmed That Tenures had their original in England before the Norman Conquest And in pursuit of this Assertion it was concluded That Feuds were then and there in use In proof hereof divers Laws and Charters of the Saxon Kings and some other Authorities be there alledged which being conceived to have clear'd that point it thus followeth in the Report p. 35. And therefore it was said that Sir Henry Spelman was mistaken who in his Glossary verbo Feodum refers the original of Feuds in England to the Norman Conquest And for a Corollary p. 38. addeth these words Neither is the bare conjecture of Sir Henry Spelman sufficient to take away the force of these Laws Vide Spelman in Glossar verbo Feodum Being thus by way of voucher made a chief Antagonist to the Reverend opinion of these learned grave and honour'd Judges I humbly desire of them that writing what I did so long ago and in a transitory passage among a thousand other obscure words not thinking then to be provok'd to this account they will be pleas'd to pardon my mistakings where they fall and to hear without offence what motives led me to my conjectures which they speak of It is necessary therefore that first of all we make the question certain which in my understanding is not done in the Report For it is not declared whether there were divers kinds of Feuds or no nor what kind they were that were in use among the Saxons nor what kind those were that I conjectured to be brought in by the Norman Conqueror I will therefore follow the direction of the Orator and fix the question upon the definition A Feud is said to be Vsus fructâ—s quidam rei immobilis sub conditione fidei But this Definition is of too large extent for such kind of Feuds as our Question must consist upon for it includeth two members or species greatly differing one from the other the one Temporary and revocable as those at Will or for Years Liâ—e or Lives the other Hereditary and perpetual As for Temporary â—euâ—s which like wild fig-trees could yield none of the feodal fruits of Wardship Marriage Relief c. unto their Lords they belong nothing unto our argument nor shall I make other use in setting of them forth than to assure the Reader they are not those that our Laws take notice of To come therefore to our proper Scheme let us see what that Hereditary Feud is whereupon our Question must be fixed for none but this can bear the feodal fruits we speak of Wardship Marriage c. A Feud is a right which the Vassal hath in Land or some immoveable thing of his Lord's to use the same and take the profits thereof hereditarily rendring unto his Lord such feodal duties and services as belong to military tenure the meer propriety of the soil always remaining unto the Lord. I call it as the Feudists do Jus utendi praedio alieno a right to use another mans Land not a property in it for in true feodal speech the Tenant or Vassal hath nothing in the propriety of the soil it self but it remaineth intirely unto the Lord and is comprehended under the usual name which we now give it of the Seignory So that the Seignory and the Feud being joyned together seem to make that absolute and compleat estate of Inheritance which the Feudists in time of old called Allodium But this kind of Feud we speak of and no other is that only whereof our Law taketh notice though time hath somewhat varied it from the first institution by drawing the propriety of the soil from the Lord unto the Tenant And I both conceive and affirm under correction That this our kind of Feuds being perpetual and hereditary and subject to Wardship Marriage and Relief with other feodal services were not in use among our Saxons nor our Law of Tenures whereon they depend once known unto them As shall appear by that which hereafter followeth CHAP. II. The Original Growth and Propagation of Feuds first in general then in England BEfore I enter into the Question in hand it will be necessary for better understanding that which followeth to set forth the original growth propagation and condition of Feuds in general which I conceive to be thus There were no doubt from the beginning of Jus Gentium Lords and Servants and those servants of two sorts Some to attend and guard the person of their Lord upon all occasions in War and Peace Some to manure his Lands for the sustenance of him and his Family When private Families were drawn into a Kingdom the Kings themselves held this distribution Examples hereof are in all Nations King David well observ'd it in the Institution of the Kingdom of Israel where if such services have any shew of Feuds or Tenures we have a pattern for them all viz. For that of Francalmoine in the Levites for Knight-service Tenure in Capite and Grand Serjeanty in the Military men which serv'd the King personally by monthly courses for Socage in those whom David appointed to manure the Fields dress the Vineyards the Olive-trees the Mulberry-trees and that had the care of the Oyl of the Oxen of the Camels Asses Sheep c. For the
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.
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
Deans and Chapter of Winchester use it as they please in their Franchise To say nothing of Dr. Rennal whose Hounds were long famous throughout all England and yet he was by profession a Canonist and knew well what induced Irregularity I will add two things more which directly appertain to the Arch-bishop of Canterbury The one is the famous Record That at the Coronation of Queen Eleanor wife to Henr. III. the Earl of Arundel who was by his place Cup-bearer for that day was enforc'd to serve by a Deputy because he was Excommunicated by the Arch-bishop for taking up his Hounds coming into the Earl's grounds to Hunt where the Arch-bishop pleaded and alledg'd that it was lawful for him to Hunt within any Forest of England whensoever he would The other is that which is written of Arch-bishop Cranmer in his life where I will cite the very words Permiserat ei pater aucupium venationem equitationem c. Quibus quidem cum jam Archiepiscopus relaxare animum abducere se à rebus gravioribus vellet ita utebatur ut in famulatu suo non fuerit quisquam qui in generosum equum salire ac tractare elegantius aut aves ferasque aucupio aut venatione insequi commodius intelligentiusque potuisset Saepe etiam etsi oculis infirmis esset arcum tendens sagitta percussit seram Out of all which and many more Records and Cases that are to be shewed the Conclusion is clear That howsoever the Canon may touch Bishops and Clergy-men beyond the Seas it meddleth not with the Bishops of England who by favour of Princes and the State have Baronies annext to their Sees So that it doth arise out of true collection from these Heads that there is no danger of Irregularity in the Lord Arch-bishop's case either toward himself or other men His Majesties Princely Grace giveth an end to all and this he most humbly craveth For other things God being appeas'd as he hopeth that he is he dreadeth not the tongue or pen of any enemy among whom the Popes and Cardinals have wilfully committed many poisonings murthers and outragious acts and yet they must believe that they are the head and chiefest members of the Church AN ANSWER TO THE Foregoing Apologie for Arch-bishop Abbot By Sir HENRY SPELMAN Kt. TOuching the First Second and Third Sections It may be that the Priests in the old Law whose Ministry was altogether in blood were not prohibited but that upon just occasion they might shed even the blood of man as well as of beasts and put on an Armour as well as an Ephod For the Tabernacle was covered with red Skins to signify cruentum Seculum cruentum Ministerium and Moses whose hands were dipt in blood was not forbidden to be the chief Founder thereof But when the Temple came to be built which was the image of the Church of Christ then the hands of David tho' they had fought the battles of God yet because they were seasoned with blood they might not lay one stone in that Foundation Therefore when the old Law and this bloody Priesthood were grown to an end and going out of the world and that the Priests of the Gospel were entring in their room into the world our Saviour commanded Peter to put up his sword for now Arma horrentia Martis rejicienda and stola candida induenda fuit Tho' then some Priests in the old Law and many thousand Levites were Martial-men yet for many hundred years in the time of the Gospel I read not of any insomuch that the succeeding ages desiring a Martial Saint were driven to suppose St. George Whether therefore these Laws of the Church which at this day prohibit Clergy-men to meddle with matters of blood be meerly ex jure positivo or ex divino mixto I leave it to the determination of the Reverend Divines 4. Concerning the Cases alledg'd out of the Decretals it is true that the Rubrick is Homicidium casuale non imputatur ei qui non fuit in culpa and Homicidium casuale non imputatur ei qui dedit operam rei licitae nec fuit in culpa And so likewise is that alledg'd out of the Gloss thereupon and out of Bracton But let us parallel the case in these with them which are as followeth A. and P. two Clerks Sporting together A. by chance threw P. down who having a knife by his side the same happened to wound A. that he died Pope Alexander III. commanded the Bishop of Exeter in this case to admit P. to holy Orders for Sporting was lawful A sickly Chaplain being gotten upon an unruly Horse and he checking him with Bridle and Spur to stay him the Horse brake his Bridle cast his Master and running over a Woman coming by kill'd a Child in her arms This Chaplain was admitted to holy Orders for that neither in Will nor Act he committed Homicide but also did a lawful Act. One being to unlade a Cart of Hay looked round about to see if any were near and seeing none threw a stack off the Cart and having unladed it a Boy was after found dead with a little stripe in his face This Priest after Canonical purgation was admitted to his place A Monk helping to take a Bell down out of a Steeple casually thrust down a piece of timber which bruised a Boy to death The Monk is judged not uncapable of further Ecclesiastical Preferment for that the business was necessary and the place not for ordinary resort A Priest tolling a Bell to Prayers the same fell and killed a Boy The Bishop is commanded to suffer the Priest to execute his Function for Nihil potuit imputari si casus omnes fortuitos non praevidit Tho' there be many points in all these cases and more in some than others to excuse the Parties agent yet will I meddle only with those two which are most eminent and offer d by the Apologist that is Animus or Intentio innocua and Actio legitima Touching the Intent none is so impious as to imagine that his Lordship intended to hurt any man yet is there this difference between his intent and theirs in the cases alledged they intended to hurt neither Man nor Beast he tho not to hurt a Man yet to kill a Beast they nihil saevum aut non legitimum he legitimum quiddam sed tamen saevum For there is a kind of cruelty in the slaughter of every thing and therefore in the old Law Lev. 17. 13. He that taketh any beast or fowl by hunting that may be eaten shall pour out the blood thereof and cover it with dust that the cruelty appear not as ◠take it And in our Law those that were exercised in slaughter of Beasts were not received to be tryers of the life of a Man Much is to be said out of Histories to this purpose But to come to the point whereon all dependeth Whether the Action his Lordship was now about be lawful or not
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
Surrey 23. King Edgar's Charter of donation of certain Thane-lands 19. Another Charter granted by him to the Monastery of Hide near Winchester 20. By whose advice his Laws were made 61. King Edward the elder how he propos'd his Laws 61. The first that prohibited Law business on Festivals 77. King Edward the Confessor's Charter of donation to Thola 20. Several priviledges granted to the Cinque-Ports 26. His Laws by whom collected 61. His Constitution touching Festivals 79. Edward Earl of Norfolk and Marshal of England 168. Dyed in his minority ibid. Edwin son of Othulf gave certain lands to Arch-bishop Odo 29. Elfere a Saxon bequeath'd Snodland to the Church of St. Andrews 128. Publish'd his Will before Odo Arch-bishop of Canterbury c. 130. Elfstane Bishop of Rochester 130. Elfsy Priest of Croyden 130. Ellingham 161. Elmham 150. Erpingham 151. Erpingham Tho. Commissioner for executing the Office of Earl Marshal of England 169. Escheats the signification of the word 37. No feodal Escheats among the Saxons 37 38. Escuage what in the Empire 36. Neither its name nor rules us'd by the Saxons 37. Essoyning the manner of it not in use before the Conquest 27. King Ethelbald's Charter to the Monks of Croyland 22. Ethelbert the first Christian King of the Saxons 8. He causes his Laws to be put in writing ibid. He took somewhat from the Roman law 102 Etheldreda daughter of K. Alfred her dowry 8. King Etheldred ordain'd every eight Hides of land to find a man for the naval Expedition 17. His Charter of donation to Aethelwold 19. Another Charter granted by him to his Thane Sealwyne ibid. King Ethelstane whom he consulted in making his Laws 61. King Ethelwulfs Charter of priviledges 23. He divided his lands by Will among his three sons 128. Euricus King of the Goths 102. Exauctoratio Militis 185. Expeditio what it signifies in Latin 17. F Fakenham 150. Fasti or Law days among the Romans why so nam d. 72. Seldom two Fasti together 75. Fasti proprie ibid. Fasti intercisi ibid. Fasti Comitiales ibid. All the Fasti not apply'd to Judicature ibid. Fealty the definition of it 35. No Fealty but for a fee. 36. What manner of Fealty among the Saxons ibid. Felbrig 152. Felewell 161. Feodal words none among the Saxons 7 8 9. Feorme what it signifies in the Saxon tongue 15 Ferdwite 37. Festa majora vel principalia 91. Festivals how exempted from Law days 76. The differences of them 91. The Festivals of St. Peter and Paul 92. Of St. George 93. Of Gun-powder Treason ibid. A Feud what it is 1. It s general and particular definition 2. Feuds among the Jews ibid. Among the Gauls 3 Their original 4. Made perpetual and hereditary 5. When and how they became so ibid. Especially in England ibid. The difference between them and Benefices 6 9. The great growth of them ibid. No proper Feuds before the Conquest ibid. Feudal-law generally receiv'd in every Kingdom 5. It s youth infancy and full age 9. Where it had its original ibid. Feudatarii 9. Feudum militare nobile 4. Rusticum ignobile ibid. Feuda majora regalia ibid. The word Feudum or Feodum not us'd in K. Beorredus's days 9. Fideles who 4. Fidelity what 59. Fines for Licence of alienation 33. The Thane-lands free from them ibid. Not in use among the Saxons 34. Fitz-Alan Jo. Lord Maltravers Marshal of England 168. Fitz-Osborn Will. Lord Marshal to King William the Conquerour 165. Flegg 154. Flitcham 145. Flitchamburrough 52 145. Folcland what 12. Not alienated without licence 33 34. Free from homage 35. Ford-Park 110. Forests belong to the King alone 118. Subjects can have 'em only in custody ibid. Fouldage 162. Franc-almoin 2 7. Frank-tenements 12. Freeborgs or Tithings 51. Frekenham 153. G Garbulsham 158. Gavelkind what and why so call'd 12. Observ'd throughout all Kent 43. At first the general Law of all Nations ibid. Germans their Customs and Tenures carry'd into several Countries 5. They receiv'd the Roman Law 127. Gey-wood 143. Gilbert the third son of William the King's Marshal 166. Made Marshal of England ibid. Kill'd in a Tournament ibid. Gimmingham 152. Goths carry the German Laws into Spain Greece c. 5. They were the first that put their Laws in writing 102. Trusted Priests with the passing of wills 130 Government the ancient Government of England 49. c. 53. Grand-days in France and England 92. Grand Serjeanty 2. Grantesmale Hugh Marshal under K. William I. 165. Greeks from whom they had much of their ancient Rites 74 127. Gresham 152. Gressenhall 150. Grey Rad. de exauctoratur 185. Guthrun the Dane 61 77. H Hales 156. Harkela Andr. de exauctoratur 185. Harleston ibid. Hartlebury-park 110. Hawkins Pet Keeper of Bramsil-park wounded by Arch-bishop Abbot 109 c. Hengham 157. King Henry I. imprison'd the Bishop of Durham 62. His Constitution about Festivals and Law-days 81. King Henry II. ratify'd the Laws of Edw. the Confess and Will the Conquerour 81. Henry Bishop of Winchester conven'd K. Stephen to his Synod 132. Heribannum what 17. Heriots paid after the death of great Men. 31 32 To whom forgiven 32. The difference between them and Reliefs 32 33. By whom and when first ordain'd 32. What the word Heriot signifies ibid. Heriots and Reliefs issuing out of the same lands 33. No badge of lands held by Knight-service ibid. Heydon 151. High Courts see Court of Justice Hikifricus Pugil quidam Norfolciensis 138. Hilary-Term its ancient bounds 82 83. The end of it sometimes held in Septuagesima 95. Hockwold 161. Holkham 149. Holland Tho Marshal of England 168. Holland Tho. Earl of Kent Duke of Norfolk 169. Made Earl Marshal of England ibid. Holland Tho. Farl Marshal of England during the minority of John Mowbray 165. Holme in Norfolk 147 152 Homage by whom first instituted 5. Feodal homage 34. Of two sorts ibid. When begun in France and England ibid. The reason of it 34 35. Who are to do it 35. Usual in Soccage-tenure 35. As well a personal as a praedial duty ibid. Homines commendati 35. Hominium homagium what 34. Homagium ligeum ibid Feodale aut praediale ibid. Hoveden Roger when he wrote 31. Howard Sir John Kt. created Duke of Norfolk and Earl Marshal of England 17â— Slain in Bosworth-field ibid. Howard Tho. the son of the former Earl of Surrey 170. Imprison'd in the Tower ibid. Defeated the Scotch under K. Henry VII ibid Made Lord Treasurer of England and restor'd to his fathers dignities ibid. Kill'd James IV. K. of Scotland in battel ib. Sent Ambassadour into France ibid. Made Vice-Roy of England ibid. Where he dy'd ibid. Howard Tho. the fourth Duke of Norfolk of that name and Earl Marshal of England 1â—1 Howard Tho. the Grand-son of the former Earl of Arundel and Surrey ibid. The first Earl of England ibid. Made Earl Marshal for life ibid. Hugh Bishop of Coventry exercis'd the Sheriffs place 116. Excommunicated ibid. De Humâ—z
Richard Tribunus Regis or Marshal to King Henry II. 166. Hundradors 51. Hundreds their original 50. Hundred Courts 51. Hunting forbidden to Clergy-men 109 112 113 114 115. Hydes what 17. When disus'd 4â— I Ibreneys Rad. de 190. Iceni 135. Eorum nomina derivatio ibid. Icenia 135. Ejusdem termini ibid. Coelum solum 13â— Ina King of the West Saxons adjusted the quantity of Rent for every Plough-land 15. By whose advice he made his Laws 61. Made a strict Law against working on Sundays 57. Ingolsthorp 146. Inland what 12. Intwood 157. K. John's Magna Charta 63. John Marshal to King Henry I. 165. Irregularity of Clergy-men wherein it consists 109 112. I se fluvius unde dictus 135. Ejusdem aestus 139. Islepe Sim Arch-bishop of Canterbury 90. Jury taken out of several Hundreds in a County 53. Jurours prohibited to have meat c. till agreed of their Verdict 89. Jus Gentium 2. Justices of Evre when instituted 27. Justinian the Emperor when he flourish'd 129. He prohibited Clergy-men to take cognizance of Wills ibid. Justitium what 72. K Keninghall 158. Kent the custom of Gavelkind in that County 43. Kettringham 15â— The King the fountain of all Feuds and Tenures 1â— The King to have his Tenants lands till the heir has done homage 3â— The King universal Lord of his whole Territories 37. Anciently granted Churches to Lay-men 115 Knight what among the Saxons 51 58. Why there are but two Knights of the Shire for a County 64. Knight's-fees 3 4 51 58. When introduc'd 45. The number of them ibid. The value of a Knights-fee ibid. Knight-service 2 7. Kymberley 158. S Sacha Soca what in the Saxon tongue 51. Saliques bring the German feodal Rights into France 5. Sall in Norfolk 151. Sandringham 146. Sanhadrim when and where the Judges of it sate 75. Satrapies among the Saxons 50. Saxons the first planters of the German Rites in Great Britain 5. Their Charters translated 7. The manner of making their conveyances 8 Distinction of persons among them 11. How many degrees of Honour they had 16. How they held their lands 40. What oblig'd 'em to so many kinds of services ibid. Saxons very much given to drunkenness 89. When they took possession of England 100. They swept away the Roman Laws there 101 Yet took somewhat from them 102. Why their Laws were not at first put in writing ibid. When they had written Laws ibid. The use of wills unknown to the ancient Saxons 127. Our Saxons observ'd the Civil Law in their wills 128. Scutagium 36 37. Sedgeford 146. Segrave Nicholas Marshal of England 167. Seignory wherein it consists 2. Services how many sorts of 'em upon lands 17. Personal services 40. Praedial ibid. Alodial ibid. Beneficiary ibid. Colonical ibid. Servitia militaria what 46. The difference between them and Servitutes militares ibid Seymour Edward Duke of Somerset Nephew of King Edw. VI. 169. Made Lord Treasurer and Earl Marshal of England ibid. Shardlow Joh Justice of Oyer had a licence to hear causes on a Festival 95 96. Sharnburn 146. History of the Family 189 c. Shelton 156. Shouldham 142. Shyre gemot what 53. Signioral authority what 6â— Snetsham 146 189 190 c. Socage 3 7 33 43. Socmen 1â— 15 57. Sprowston 153. Stanchow 146 19â— Star chamber Court 94 95. Stigand Arch-bishop of Canterbury depos'd 119. Stock-Chappel 146. Stow-Bardolfe 140. Strangbow Gilb Earl of Pembroke and Marshal of the King's Palace 165. Suiters of the Hundred 51. When and by whom call'd at this day ibid. Summons the manner of it in the Empire 36. Sunday how exempted from Law Suits 76. Sustenance what 59. Swasham 141. Swainmote-Courts 85. Syndici who 63 64. Synod of Eanham when held 78. T Talbot George Earl of Shrewsbury 171. Executed the Office of Lord High Steward of England ibid. Tallagium 60. Tasburg 156. Tassilo Duke of Bavaria did homage to King Pipin 34. Tenant lands of how many sorts 4. Tenants by Knight-service 4. Tenant in capite 10. Tenant in menalty ibid. Tenant Paraval ibid. Tenant's land or the Tenancy 12. Tenants what they were in ancient time 51. Tenants in Socage 57. Tenants forc'd to pay a fine upon the marriage of a Daughter 60. To furnish their Lords with provisions ibid. To present them with gratuities ibid. Tenure in capite 2. By Knight-service 4 7. The Original of Tenures 4. Tenure in Socage 4 7. Tenures for Life ibid. What tenures were in use among the Saxons 7. When first us'd ibid. No tenures in capite among the Saxons 10. Tenure in capite of two sorts ibid. The fruits of feodal tenures 24. The name of tenures not us'd by the Saxons 40. Terminus what it signifies 71. When the word became frequent ibid. Terms their definition and etymology 71. Several acceptations of the word 70. Full term and Puisne term ibid. The Original of Terms 73 77. Two Terms among the Welch 74. The Terms laid out according to the ancient Laws 82. The ancient bounds of Hilary-Term 82 83. Of Easter-Term 83. Of Trinity-Term 84 85. Of Michaelmass-Term 85 86. How Trinity Term was alter'd 87. Michaelmass-Term how abbreviated 88. Why the Terms are sometime extended into the Vacation 95. Terra Regis 57. Terrae testamentales 12. Terrington 138. Tertium denarium 14. Testaments and last wills not in use among the ancient Hebrews 127. Not found in Scripture before Christ's time ibid. Expresly mention'd by St. Paul ibid. Not us'd by the Saxons or Normans ibid. The custom of making wills from whom taken up ibid. How many witnesses to a will requir'd by the Civil Law 128. Thane or Theoden who 10 11. Their several kinds 16. Not properly a title of Dignity ibid. The Etymology of their name ibid. The quality of their Persons ibid. The nature of their Land 17. The word Thane has no relation to war 21. A Thane's Heriot 31. Thane-lands not subject to feodal service 18. Charters of Thane-lands granted by Saxon Kings 19 20. The occasion of granting them 21. Thane-lands alienated ibid. Devised by will 22. Granted to women ibid. No service upon 'em but what was express'd ibid. Dispos d of at the pleasure of the owner 23. Charged with a Rent ibid. Might be restrain'd from alienation ibid. Thane-lands and Reveland what 38. Thani majores minores 16. Thani Regis ibid. Theinge 50. His jurisdiction ibid. Theowes and Esnes who 11. Thetford 158. Thokus Dominus de Sharnburn 189. Thola the widow of Ore had a grant of certain lands of K. Edw. the Confessour 20. Obtain'd a Licence to devise her Lands and Goods 34. Thrimsa what 15. Thrithingreves or Leidgerevâ—s their Office and Authority 52. What causes were usually brought before ' em ibid. Tribunus militum rei militaris aut exercitus 165. Tribute 59. Trimarcesia what 3. Trinity-term its ancient bounds 84 85. How it was alter'd and shortned 87. Trinodis necessitas 17 43. Trithings or Lathes 50. Why so call'd 52. Turfs why so call'd 139 140. Tydd
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
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.
are all for profit taking what we find at market without enquiring from whence it came With this honest freedom does he censure his own times Not but then as well as now the studies to which he directs were pursu'd and encourag'd by Persons of the highest Stations in the Law and some of them were so far concern'd for the improvement of ancient Learning that they form'd themselves into a Society of Antiquaries for that purpose as we learn from Sir Henry's Introduction to his Law-terms With this design of understanding the foundation of our Laws Ecclesiastical as well as Civil he read over the Fathers Councils and as many of the middle-age Historians as he could meet with whether foreign or domestick Printed or Manuscript The roughness of style could not be very pleasing but that which chiefly discourag'd him was the great number of strange and obsolete words which are very hard to be understood and yet oftentimes are so considerable that the meaning of the whole sentence depends upon them However he went forward and where he met with any such word set it down in it's proper order with a distinct reference to the place till by degrees he had collected a variety of instances and by comparing the several passages where the same word occurr'd was able to give a tolerable conjecture at the true signification After he had made a considerable collection of this kind and observ'd how by this means the reading of the old Historians became every day more easie and pleasant he begun to digest his materials and from the several quotations to draw a judgement of the strict acceptation of each word in the respective Ages wherein it was used For he consider'd that what had been a discouragement to him would be so to others too and that a work of this nature would remove one of the greatest difficulties in the reading of our old Historians But tho' a number of instances gave him good satisfaction as to the several Words yet finding that many of our Laws since the Conquest are drawn from the Constitution of the Saxons and that many obsolete Terms in our Latin Historians must be of a pure Saxon Original he despair'd of ever accomplishing his design for want of understanding that Language At least he was certain that the knowledge of it must needs lead him to a clearer interpretation of many obscure passages and enable him throughout the whole Work to deliver his Opinion with a better assurance This Language at that time was not to be learnt without great difficulty Little assistance was to be expected from conversation in a study which few People of that Age ever minded Nor had he the directions either of Grammar or Dictionary as we at this day are accommodated with both very accurate in their kind However he set heartily about it and tho' I think he never perfectly conquer'd it yet under so many inconveniencies it is a greater wonder that he should attain so good a knowledge than that he should not make himself an absolute Master of it After he had made large Collections and got tolerable knowledge of the Saxon Tongue he resolv'd to go on with his undertaking but because he would not depend altogether upon his own Judgement he Printed a sheet or two for a Specimen whereby his Friends might be able to give him their opinion of the design He was encourag'd on all hands by the most Learned Persons of that Age at home by Archbishop Usher Bishop Williams then Lord Keeper Mr. Selden and Sir Robert Cotton abroad by Rigaltius Salmasius Piereschius and others as also Bignonius Meursius and Lindenbrogius whose assistances he very gratefully acknowledges in his Preface to the work Upon their encouragement he prepar'd part of it for the Press and offer'd the whole Copy to Mr. Bill the King's Printer He was very moderate in his demands desiring only five pound in consideration of his labour and that too to be paid him in Books But Mr. Bill absolutely refus'd to meddle with it knowing it to be upon a subject out of the common road and not likely to prove a saleable work So that Sir Henry was forc'd to carry it on at his own charge and in the year 1626. publisht the first part of it to the end of the Letter L. Why he went no farther I cannot tell nor has he so much as hinted to the cause of it either in his Preface or any part of his works that I know of Monsieur du Fresne who very much laments that he should not publish the second part himself fancies that his design of compiling the English Councils might be the occasion of his breaking off in the middle of his Glossary But 't is not likely that a Person of Sir Henry Spelman's settl'd Temper and Resolution should leave one work imperfect to make way for another I have heard it affirm'd by others that he stopped at the Letter M. because he had said somethings under Magna Charta and Magnum Consilium that his Friends were afraid might give offence But I believe the true reason was this Printing it at his own charge he must have laid out a considerable summ upon the first part and having a large Family there was no reason why he should venture as much more without the prospect of a quicker return than either the coldness of the Bookseller or the nature of the work gave him It fell out accordingly for eleven years after the greatest part of the Impression remain'd unsold till in 1637. two of the London Booksellers took it off his hands And tho' he should afterwards have had encouragement to go forward that was not a time to speak freely either of the King's Prerogative or the Liberties of the Subject both which would upon many occasions fall in his way Besides that the finishing the second part with the same copiousness and accuracy as he had done the first would have been too heavy a task for a Man of his great Age. The Author has told us in an Advertisement before the book that he chose to entitle his work Archaeologus rather than Glossarium as we commonly call it For a Glossary strictly speaking is no more than a bare explication of Words whereas This does more especially treat of Things and contains entire Discourses and Dissertations upon several of the heads therein mention'd For which reason it is not only to be consulted upon occasion like our common Lexicons but ought to be carefully perus'd and study'd as the greatest Treasure extant of the ancient Customs and Constitutions of England Before the Edition of 1626. he has this remarkable Dedication Deo Ecclesiae Literarum Reipub. Sub protestatione de addendo retrahendo corrigendo poliendo Prout opus fuerit consultius videbitur Deo clementissime annuente HENRICUS SPELMANNUS Omni supplex humilitate D. D. I have therefore set it down at large because in the Editions of 1664. and 1687. they have
Thanes we must consider them the more diligently first in the quality of their persons secondly in the tenure of their lands A Thane was in like manner as the Earl not properly a title of dignity but of service so called in the Saxon of â—enian servire and in Latin Minister à ministrando But as there be many degrees of service some of greater estimation and some of less so those that served the King in places of eminency either in Court or Common-wealth were called Thani majores and Thani Regis and those that served under them in like manner as under Dukes Earls and other great Officers of the Kingdom and also under Bishops Abbats and the greater Prelates of the Church were called Thani minores or the lesser Thanes And as the titles of honourable office and service in Dukes Earls c. became at length to be made hereditary so this of Thanes like our titles of Noblemen and Gentlemen descended at last with their Fathers land upon their Children and posterity And continued thus till after the Conquest as appears by some Writs and Charters of the Conquerour Buchanan describing the quality of their persons calleth them Praefectos regionum sive Nomarchas Quaestores rerum capitalium Governours of places principal Ministers of justice Chequer men Sheriffs c. But we will take them as the Saxons themselves describe them in the place before mentioned where it thus followeth gif Ceorl geðeah ê§ he hefde fullice fif hyda agenes lande c. if a churl or husbandman thrive so that he had fully five hydes of his own land a Church and a Kitchin a Bell-house and a Gate-house a seat and a several office in the King's Hall then he was from thenceforth worthy of the rights of a Thane meaning as I understand it he was then one of the greater Thanes or King's Thanes For the lesser Thane is by and by described also in that which followeth viz. And gif ðegen geðeah c. And if a Thane himself so prospered that he served the King and ridd upon his message as others of his Court and then had a Thane i. e. an under or lesser Thane that followed him which had five hydes or plough-land chargeable to the King's expedition and served his Lord in the King's Court and had gone thrice upon his errand to the King he this under-Thane might take an oath instead of his Lord and at any great need supply the place of his Lord. And if a Thane did so thrive as he became an Earl he had the rights of an Earl And a Merchant might become a Thane c. Mr. Lambard conceiveth this place to discover but three degrees among the Saxons viz. Earls Thanes and Ceorls not admitting the under-Thane to be a several degree The words seem otherwise and the Saxon division before recited maketh four degrees Earl Ceorl Thegn and Theoden or under Thane Some therefore distinguish Thanes into majores and minores some into majores minores otherwise called mediocres and minimi whom Canutus in his Forest-laws calleth Minuti and Tinemen I dare not venture to define them particularly but will rest upon the Saxon division first mentioned which I find to be pursued by Norman terms in the laws of Edw. Confess and William Conq. delivered by Ingulfus viz. Count Baron Valvasor and Villain Where he placeth Count instead of Earl Baron instead of Kings-Thane Valvasor instead of Theoden or lesser Thane and lastly Villain instead of Churl As though the division both of the Saxon and Norman times did hold analogy one with the other and both of them with ours at this day viz. of Earls and Barons of the Kingdom including the greater Nobility Barons of Towns and Mannours including the lesser Nobility or Gentry and that of our Yeomen including the Husbandmen To return to the Thanes This Saxon passage hath per transennam shew'd unto us not only the quality of their person but the nature of their land whereupon all our Question doth depend And true it is it sheweth that both they and it were subject to military service call'd in Latin Expeditio in Saxon utfare and ferdgung and in foreign Nations Heribannum that is the calling forth of an Army And it appeareth by an ancient MS. of Saxon Laws in the Kings Library that the Thanes were not only tyed to this but to many other services to be done unto the King and that in respect of their land which notwithstanding bred no Tenure in Capite or by Knights-service The words be these Tbani lex est ut sit dignus rectitudine testamenti sui ut tria faciat pro terra sua Expeditionem Burghbotam Brugbotam de multis terris majus Landirectum Exurgit ad Bannum Regis sicut est Deorhege ad mansionem regiam Sceorpum in hosticum custodiam maris capitis pacis Elmesfeoh Ciricsetum i. e. pecunia Eleemosynae Ciricsceatum aliae res Thus in English The Law touching a Thane is That he have power to make a will and that in respect of his land he shall do three things viz. Military Expedition Repairing of Castles and mending of Bridges and for more lands to do more Land-duties To go forth upon the King's summons to the enclosing of his Park and Mansion-house and to ..... into the enemies Lands and to defend the Sea his own head and the peace to pay Alms-monies Church-seeds Church-shots and other things What is there in all this to shew either a Tenure in capite or by Knight-service It will be said that the Military Expediton and Warding of the Sea against enemies imply a tenure by Knight-service and that those and the other services being to be performed to the King and upon the King's summons shew a Tenure in capite And no doubt so would it be for lands given in this manner by the King since the Conquest But I conceive that none of all this riseth out of any Tenure or Feodal reservation made by the Saxon Kings in granting these lands or by any particular contract agreed of by the Thane or Subject in accepting them but out of a fundamental law or custom of the Kingdom as ancient as the Kingdom it self whereby all the land of the whole Kingdom was oblig'd to this Trinodae necessitati of military Expedition and building or repairing of Castles and Bridges so that if this made a tenure by Knight-service in Capite in the Thane Lands then must it follow also that all the land of the Kingdom was likewise holden by Knights-service in capite for it was wholly tyed to those three services as appeareth in the Council of Eanham Cap. 22. 23 where they are commanded to be yearly done And by the laws of Canutus Cap. 10. 62. where they are appointed to be done as necessity requireth And also by the law of King Ethelred who about the thirtieth year of his reign ordain'd that
under these names all the lands that belong'd thereunto And those that dwelt upon those mansas c. they called not tenentes holders as we do but manentes as persons abiding there All the foresaid words being of the middle-age-dialect not appropriated to the feodal language Fourthly In granting of feuds and feud lands the consideration is allways for matter de futuro as pro homagio servitio habendo But here in granting these Thane-lands the consideration is for service past or present signified by the quality of the Thane as fideli ministro meo or pro placabili obsequio not only without reservation of any future service but with express immunity from all services as to use the words of the Charters themselves 1. ut sint libera vel immunia à servitute mundana 2. Ab omni malorum obstaculo 3. Liberrima ab omni munduali obstaculo 4. Liberrimum ab omni munduali obstaculo in magnis modicis 5. Aeterna libertate jocundum 6. Liberum ab omni seculari gravedine Such was the freedom of these Thane-lands equal and no less than that of the lands given in Franck-Almoigne by King Edgar in the last cited Charter which are there said to be Omni terrenae servitutis jugo liberae imperpetuum Fifthly The Feodal lands might not be aliened without Licence But the Thane by the very words of his original Charter might grant them cuicunque voluerit Sixthly A Feodal tenant or tenant by Knights-service as we call him could not devise his land by Will before the statute of 32. Hen. VIII tho' it were with Licence of the Lord and of the King himself which law the Germans themselves do hold even unto this day And the Danes can yet devise no land by Will as I am informed but the Thane might devise his Thane-land to whom he would as appeareth bâ— the words of King Edward the Confessor in a Charter to Thola where he saith Possideat hanc meam regiam donaâ—â—onem quamdiu vivat post obitum suum cuicunque voluerit haeredi relinquat excluding hereby all title of Wardship and Feodal duties To the same effect are the rest of the Charters and therewith agreeth the priviledge of a Thane before mentioned Thani lex est ut sit dignus rectitudine testamenti sui As for that passage in the Will of Brictrick the Saxon where he seeketh his Lord s consent that his Will may stand I conceive it to be in respect of some â—oâ—â—land or custumary land which according to the use of that time he held at the will of his Lord and not in respect of any Thane-land For tho' this Brictrick were a man of great possessions yet was he none of the chiefest sort of Thanâ—s called the King's Thanes but as appeareth by his Will an under-Thane belonging to Aelfric who was Earl of Mercia And how far the priviledge of these under or lesser-Thanes extended I cannot yet determine Seventhly If Thane-land were of the nature of lands holden by Knight-service then by the Feodal law of that time it could not transire a lancea ad fusum that is it might not be granted to Women for Women were not then nor long after capable of Feodal land But the land here granted to Thola was Thane-land as appeareth by the very words of her Charter for that it is granted in aeternam haereditatem perpetualiter possidendam which words making an estate of inheritance were only proper to Thane-land otherwise called Bocland not to Folcland or Popular land which was but at Will of the Lord for years or for life Eighthly There could no tenure nor service lye upon the Thane-lands other than what was expressed in the Charters For in the end of every of them there was an horrible curse which in those days was fearfully respected laid by the King himself upon all those that should violate the Charter either by adding other incumbrances or by diminishing the granted immunities So that it is not to be supposed that there was any lurking Tenure or matter of plus ultra to impeach them The curse beginneth in every of the Charters with these words Si quis autem c. Ninthly and lastly Touching Expedition and repairing of Castles and Bridges which the Saxons called Burghbote and Brugbote tho' the two first of them be wholly military and the last serving as well for the passage of the King's Army as for the trade and commerce of his people yet were none of them either marks of Tenure or of Feodal service as appeareth by that we have formerly shew'd and by the testimony of these Charters where to use the words of Edw the Confessor in that to Thola it is said that they are Omnibus hominibus communia a common burthen to all men as belonging to the safety and sacred anchor both of the Kingdom and Common-wealth The Saxons therefore did not call them services or Feodal duties as things that lay upon the person of the owner but landirecta rights that charg'd the very land whosoever did possess it Church or Lay man And these duties were ordinarily excepted in every Charter not for that they should otherwise be extinguished but per superabundantem cautelam lest the general words precedent should be mistaken to involve them and to release that which the King could not release For tho' Ethelbald by his Charter to the Monks of Croyland did give the site of that Monastery with the appendancies c. libera soluta ab omni onere seculari in perpetuam elâ—emosynam yet in his Charter of priviledges granted to all Churches and Monasteries of his Kingdom speaking of the repairing of Castles and Bridges he confesseth and saith that Nulli unquam relaxari possunt And I suppose that the word Expedition was here omitted by the negligence of the Scribe for I never find it severed from repairing of Castles and Bridges in any other Charter And also tho' King Ethelwulf by his memorable Charter of priviledges ratified by the great Council of Winchester in the year 855. did by express words free Sanctam Ecclesiam that is all the Churches and Monasteries of his Kingdom ab Expeditione pontis extructione arcis munitione yet the whole Clergy about the year 868. did notwithstanding voluntarily assist his son Beorredus against the Danes with all the power they could as appeareth by the Charter of the same Beorredus CHAP. XI More touching the freedom of Thane-land out of Doomsday THo' that which is delivered in these Charters be authentical and need no farther proof yet to convince broad spreading errors the more manifestly it will not be unnecessary to shew what Doomsday it self relateth to confirm it For whereas lands holden in Capite and by Knights-service could not otherwise be disposed than by licence of the King or Superior Lord Doomsday sheweth that the Thane-lands might be used and disposed at the pleasure of the owner without impeachment
filiam cujusdam viri Vlfi quem concupiverat maritali sibi foedere copulare Here it appeareth that the King's Licence or good will was sought but the reason appeareth not The good will of King Solomon was sought that Abishag might be given to Adoniah for his wife but not in respect of Tenure in either case It is an express law of King Canutus Ll. 72. ne nyde man naðer ƿif ne maeden c. That no man should constrain either woman or maid to marry otherwise than where they will nor shall take any mony for them unless by way of thankfulness some do give somewhat If these passages carry any shew of Wardship I must still let you know that Knights Fees were not at this time descendable unto Women by the Feudal law no nor long after when they were become hereditary in the masculine line Ne à Lancea ad fusum haereditas pertransiret as you may see by Cujacius in feud Lib. 1. Tit. 1. The first law that I meet with touching Feudal marriages is in Magna Charta Libertatum Hen. I. yet is there nothing spoken of marrying the heir male of the Kings Tenant within age And touching the female issue it is only provided that the King should be so far acquainted with their marriage as that he might be assur'd they should not marry with his enemies lest the feuds or feifs which were given for service against them should by this occasion be transferr'd to them Hear the words of the Charter Et si quis Baronum meorum vel aliorum hominum meorum siliam suam nuptui tradere voluerit sive sororem suam sive neptem sive cognatam mecum inde loquatur sed nec ego aliquid de suo pro hac licentia accipiam nec defendam ei quin eam det excepto si eam velit jungere meo inimico Et si mortuo Barone vel alio homine meo filia haeres remanserit sine liberis fuerit dotem suam maritationem habebit eam non dabo marito nisi secundum velle suum c. Ordaining that the Wife shall be Guardian of the Childrens lands or some near kinsman qui justus esse debet and that other Lords observe the like courses touching their Wards Thus among the Normans but I don't find in all the Feodal law of these times any thing sounding to this purpose nor any mention of Marriage or Wardship of the body or lands I take them therefore to have risen from the Normans a little before their coming into England but in a diverse manner according to the diversity of the places and the moderate or covetous disposition of the Lords For it seemeth that tho' the profits of the land belong'd wholly to the Lord and were therefore ordinarily so taken by him yet some of the Lords deducting only the charge of Education of the Ward and just allowances restor'd him his lands at full age with the surplusage upon accompt And the Grantee of a Wardship from the King was in Normandy tyed to do it as appeareth by the 215. Artic. of the reformed Customes for otherwise they were not Guardians properly and Tutores rei pupillaris but fructuarii rather and suum promoventes commodum See the Comment to that Article So in point of Feodal marriage it seemeth that the Charter of Henry I. was grounded upon the Norman Custom which tho it required the consent of the Lord in tendring of Marriage to Women for the reason aforesaid yet did it not permit either him or the kindred or friends whom they called the parents to make it venal or to take any thing for the same as you may see by divers passages there and by a case adjudged in the Comment to the 228. Article where the Tutor or Guardian and the Parents and Friends thus offending are all condemn'd to pay costs and damages And note that according to the Norman custom the consent of the Parents viz. the next kindred and friends was as requisite as the consent of the Lord or Tutor which as I conceive gave the occasion of the words Si parentes conquerantur in the Statute of Merton as in respect of the ancient right they had in consenting to the Marriage And insomuch as we don't find that the various usages touching Wardship and Marriage were compos'd into an uniform law till Magna Charta Henr. III. did determine it it may be conceiv'd to have been the reason that Rand. Higden before mention'd and our other Authors did ascribe this part of our Feodal Law to be introduced by Henry III. But it is manifest by Glanvil that it was in use in Henry II's time and by the Charter of Henry I. to have been so likewise under William Rufus yet is there nothing hitherto any way produc'd to bring it from the Saxons or to shew it to have been in use amongst them CHAP. XVI No Livery no Primer Seisin IF the King's Tenant in capite or by Knight-service dieth the King shall have his lands till the heir hath done homage which if he be of full age he may do presently but if he be under age the land must continue in the King's hands till his full age And when either the one or the other sueth to have it out of the King's hands his obtaining it is called Livery and the profits receiv'd in the mean time by the King are call'd his Primer Seisin But neither of these could be among the Saxons for that their hereditary lands were not Feodal but libera ab omni gravedine as before we have shew'd And their temporary lands could not be subject to it for that their Estate extended no farther then to a Franck Tenement And neither the one or the other was then tyed to do Homage as shall appear when we speak of Homage After the coming of the Normans they were presently afoot amongst us even in William Rufus's days but uncertain and irregular which was a certain note of their novelty and that Feuds hereditary were new begun The great Charter of Liberties granted by Henry I. implyeth as much where to moderate them the King saith thus Si quis Baronum meorum seu Comitum sive aliorum qui de me tenent mortuus fuerit haeres suus non redimet terram suam sicut faciebat tempore fratris mei sed legitima justa relevatione relevabit eam Similiter homines Baronum meorum justa legitima relevatione relevabunt terras suas de Dominis suis I take this redeeming of the land out of the King's hands to be a Composition for his Primer Seisin and for the Livery and Relief things uncertain at this time even in their Norman appellations and not likely therefore to be known unto the Saxons CHAP. XVII That Reliefs whereon the Report most relyeth were not in use among the Saxons nor like their Heriots OF all the Feodal profits alledged in the Report to be receiv'd
that succeeded and out of his purse The Heriot whether the son or heir enjoy'd the land or not the Relief by none but him only that obtain'd the land in succession The Heriot whether the land were fallen into the Lord's hands or not the Relief in old time not unless it were fallen and lay destitute of a Tenant whose taking of it up out of the Lord's hands was in that sense called Relevium or Relevatio a taking up of that was fallen according to the French word Reliefe Bracton well observ'd the difference saying Fit quaedam praestatio quae non dicitur Relevium sed quasi sicut Heriotum quasi loco Relevii quod dari debet aliquando ante sacramentum fidelitatis aliquando post Hotoman saith Relevium dicitur honorarium munus quod novus Vassallus Patrono introitus causa largitur quasi morte alterius Vassalli vel alio quo casu feudum ceciderit quod jam à novo sublevetur Nov. Leo. 13. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 nominat I stand the longer herein for that not only the Report but even Doomsday it self and generally all the ancient Monkish writers have confounded Heriots and Releifs Yet might I have saved all this labour for nothing can make the difference more manifest than that we often see both of them are together issuing out of the same land But when all is done neither is Heriot nor Releif any badge of land holden by Knight's-service or in Capite for both of them are found in lands of ordinary Socage Yet I confess that Bracton saith de soccagio non datur Relevium and a little before de soccagio non competit domino Capitali Custodia nec homagium ubi nulla Custodia nullum Relevium sed è contra But this serveth my turn very well for that they in the Report having fail'd to prove that Releifs were in use in the Saxons time whereof they affirm'd they had full testimony it now inferreth on my behalf that if Releifs and Wardships were not in use among the Saxons that then also Tenure by Knight-service was not with them Besides all this the Heriot was a certain duty and settled by Law the Relief so various and uncertain as the Lords exacted what they listed for it when it fell into their hands constraining the heir of the Tenant as it were to make a new purchase of their Feud whereupon the Feudists called this Releif not only Renovatio and Restauratio feudi in Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 turning or bringing back of the Feud to the former condition or proper nature of it but also Redemptio a ransoming of it out of the Lord's hands That it thus stood with us in England by and by after the Conquest appears by that we have shewed before out of the Magna Charta of Henry I. CHAP. XIX No Fines for Licence of Alienation TOuching Fines for Licence of Alienation it is not said what kind of Tenants among the Saxons did pay them nor for what kind of land they were paid The Thane-land hereditary is apparently discharg'd thereof by the ordinary words of their Charters before mention'd where 't is said that the owners of lands may give and bequeath them cuicunque voluerint and that freely ab omni munduali obstaculo Doomsday also as we here shewed doth testifie as much and so doth the very word Alodium which the ancient Authors attribute to these lands So that the Thane-lands doubtless were free both from the Fine and Licence But as touching Folcland and land holden at will of the Lord tho' continued in ancient time to their children after the manner of Copy-holds it is no question but that they might both have Licence for aliening such lands and also pay consideration for it as our Copy-holders do at this day I find that one Brictrick in the time of King Etheldred about the year 984. bequeath'd legacies of good value unto his Lord's wife to intreat her Husband that this Brictrick's Will whereby he had devised many lands and goods to Monasteries and divers men might stand And that Thola the widow of Vrke a Thane of Edward the Confessor obtain'd licence from the same King Edward that she might devise both her lands and goods to the Monastery of Abbotsbury But of what nature these Licences were whether to alienate the land or to make a Will or to give the land to Monasteries as in Mortmain I cannot determine If they only intended alienation then I understand them only of Lands holden according to the custom of the time at will of the Lord or Folcland Yet in that Thola's Licence was as well to bequeath her goods expresly as her lands the Licence seemeth to be given therefore to make a Will which no man then could do if not a Thane Quaere But howsoever it be expounded it must not be extended to the Thane-lands or land hereditary for the reasons before alledged And as touching Fines for Licence of Alienation after our manner which the Report suggesteth they could not doubtless be in use among the Saxons for there are not found as I suppose here among us before the time of Edward I. and not established afterwards 'till 1. Edw. III. where the King granteth that from thenceforth lands holden in Chiefe should not be seized as forfeited which formerly they were for Alienation without Licence but that a reasonable Fine should be taken for the same See the Statute CHAP. XX. No Feodal Homage among the Saxons OUr word Man and homo in Latin have for many ages in old time been used by the German and Western Nations for a Servant or Vassal And from thence hominium and vassaticum afterwards homagium was likewise used for hominem agere to do the office or duty of a servant not to signifie Manhood as some expound it and so also Vassalagium But by little and little all these latter words have been restrain'd to note no more than our ceremonial homage belonging properly unto Tenures which I met not with among our Saxons nor any shew thereof in former ages unless we shall fancy that the Devil had it in his eye when he offered to give unto our Saviour all the Kingdoms of the world if he would fall down and worship him For here he maketh himself as Capital Lord our Saviour as the Feodal Tenant the Kingdoms of the world to be the Feud the falling or kneeling down to be the homage and the worshipping of him consisting as the Feodists expound it in six rules of service to be the Fealty Pardon me this idleness but from such missemblances rise many errors Homage as we understand it in our Law is of two sorts one more ancient than the other called homagium ligeum as due unto the King in respect of Soveraignty and so done more Francico to King Pipin by Tassilo Duke of Bavaria about the year 756. The other homagium feodale or praediale belonging to
every feodal Lord and not begun in France 'till Feuds were there made hereditary by Hugh Capet nor in England till William the Conqueror did the like as before appears The reason of it was to preserve the memory of the Tenure and of the duty of the Tenant by making every new Tenant at his entry to recognize the interest of his Lord lest that the Feud being now hereditary and new heirs continually succeeding into it they might by little and little forget their duty and substracting the services deny at last the Tenure it self We see at this day frequent examples of it for by neglecting of doing homage and those services Tenures usually are forgotten and so revolv'd to the King by Ignoramus to the great evil of their posterity that neglect it But the Saxons having only two kind of lands Bocland and Folcland neither of them could be subject unto homage for the Bocland which belong'd properly to their greater Thanes tho' it were hereditary yet was it alodium and libera ab omni seculari gravedine as before is shewed and thereby free from homage And the Folcland being not otherwise granted by the King or his Thanes than at will or for years or for life the tenant of it was not to do any homage for it For Justice Littleton biddeth us note that none shall do homage but such as have an estate in fee simple or fee taile c. For saith he 't is a maxim in law that he which hath an estate but for term of life shall neither do homage nor take homage But admit the Saxons had the ceremony of doing homage among them yet was it not a certain mark of Knights-service for it was usual also in Socage-Tenure And in elder ages as well a personal duty as a praedial that is done to Princes and great Men either by compulsion for subjection or voluntary for their protection without receiving any feud or other grant of land or benefit from them And he or they which in this manner put themselves into the homage of another for protection sake were then called homines sui and said commendare se in manus ejus or commendare se illi and were thereupon sometimes called homines ejus commendati and sometimes commendati without homines as in Doomsday often Tho' we have lost the meaning of the phrase yet we use it even to this day Commend me unto such a man which importeth as much as our new compliment taken up from beyond the Seas let him know that I am his servant See the quotations here annexed and note that tho' the Saxons did as we at this day call their servants and followers homines suos their men yet we no where find the word Tenure or the ceremony of homage among them nor any speech of doing or of respiting homage CHAP. XXI What manner of Fealty among the Saxons SO for Fealty if we shall apply every oath sworn by Servants and Vassals for fidelity to their Lord to belong unto Fealty we may bring it from that which Abraham imposed upon his servant put thy hand under my thigh and swear c. For the Saxons abounded with oaths in this kind following therein their Ancestors the Germans who as Tacitus saith took praecipuum Sacramentum a principal oath to defend the Lord of the Territory under whom they lived and to ascribe their own valour to his glory So likewise the homines commendati before mention'd yea the famuli ministeriales and houshold servants of Noble persons were in ancient times and within the memory of our fathers sworn to be faithful to their Lords These and such other were anciently the oaths of Fealty but illud postremo observandum saith Bignonius a learned French-man of the King 's great Council fidelitatem hodie quidem feudi causa tantum praestari shewing farther that Fealty was first made to Princes by the Commendati and Fideles without any feud given unto them and that the Princes afterwards did many times grant unto them feuda vacantia as to their servants but whether the oath of fealty were so brought in upon feodal tenants or were in use before he doth not determine In the mean time it hereby appeareth that fealty in those days was personal as well as feodal or praedial which imposeth a necessity upon them of the contrary part in the Report that if they meet with fealty among the Saxons they must shew it to be feodal and not personal for otherwise it maintaineth not their assertion I will help them with a pattern of fealty in those times where Oswald Bishop of Worcester granting the lands of his Bishoprick to many and sundry persons for three lives reserv'd a multitude of services to be done by them and bound them to swear That as long as they held those lands they should continue in the commandments of the Bishop with all subjection I take this to be an oath of Fealty but we must consider whether it be personal or praedial If personal it nothing then concerneth Tenures and consequently not our question If praedial then must it be inherent to the land which here it seemeth not to be but to arise by way of contract And being praedial must either be feodal as for land holden by Knight-service or Colonical as for lands in Socage If we say it is feodal then must there be homage also as well as fealty for homage is inseperable from a feud by Knight-service but the estates here granted by Oswald being no greater than for life the Grantees must not as we have shewed either make or take homage And being lastly but Colonical or in Socage it is no fruit of a Tenure in Capite by Knight-service nor belonging therefore to our question So that if fealty be found among the Saxons yet can it not be found to be a fruit of Knight-service in Capite as the Report pretendeth it See Fidelitas in my Glossary CHAP. XXII No Escuage among the Saxons What in the Empire THe word Scutagium and that of Escuage is of such novelty beyond the Seas as I find it not among the feudists no not among the French or Normans themselves much less among the Saxons Yet I meet with an ancient law in the Novella of Constantine Porphyrogenita Emperour of Greece in the year 780. that gives a specimen of it tho' not the name Quaedam esse praedia militaria quibus cohaereat onus Militiae ita ut possessorem necesse sit se ad militiam comparare domino indicante delectum vel si nolit aut non possit se ad delectum exhibere certam eo nomine pecuniam fisco dependere quae feudorum omnium lex est c. This tells us that there were certain lands to which the burden of warfare was so adherent that every owner of them was tyed upon summons made by his Lord to make his appearance therein or else to pay certain money by way
of a Fine as was common in all cases of Feodal Tenures This hath some shew of our Escuage and might well have taken that name from the manner of summons used in the Empire which was by erecting a post or pillar and hanging a Shield at the top thereof an Herald proclaiming that all who held in this manner should at such a day attend the Emperour in his voyage to Rome for taking the Crown of Italy or King of Romans which the Ligurine Poet thus expresseth Ligno suspenditur alte Erecto Clypeus tunc Praeco regius omnes Convocat a dominis feudalia jura tenentes c. as we have shew'd in our Glossary verbo Feudum He useth Clypeus for a Shield instead of Scutum and from this shield I say it might well be called Scutagium as also from the service performed in it cum hasta scuto Yet this summons was not called Schiltbannum but Heribannum that is indictio exercitus not indictio sâ—uti But to keep nearer the matter First our Saxons neither used the name nor the rules of the Norman Escuage for they called their going to war upon legal summons firdfare and utfare in Latin Expeditionem and Profectionem Secondly they were not tyed to any definite time of abode as for fourty days or more or less but as the law saith sÆ¿a a ðon ðearf sy for gemeneâ—â—â—re neode so as need shall require for common necessity Thirdly the mulct or forfeiture that the Tenant in Escuage incurred for not going forth upon that summons was uncertain among the Normans and us 'till the Parliament assign'd it but among the Saxons he that offended in Ferdwite that is in not going forth in the Expedition was certainly fin'd at 120 Fourthly whereas every Lord among us had the fine assess'd by Parliament of his own Tenant for the Lands holden of himself the King among the Saxons had the fine aforesaid of every delinquent whose Tenant or follower soever he were by all the Laws of the kingdom that is to say by the West-Saxon Law by the Mercian and by the Dane Law tho' otherwise they differ'd in their Heriots and many particular customs So that to talk of Escuage among the Saxons is without all colour or probability as I take it CHAP. XXIII No Feodal Escheate of Hereditary Lands among the Saxons EScheats of Eschoeir in French signifieth things coming accidentally as on the by or by chance The Fâ—odists therefore call them Caduca a cadendo and excadentias the black book of the Exchequer Escaetas excidentia and excadentia but among our Saxons I find no word to express them either properly or paraphrastically In our Law they be of two sorts Regal Escheats and Feodal Regal are those obventions and forfeitures which belong generally to Kings by the ancient right of their Crowns and supreme dignity Thus King David gave the lands of Mephibosheth accused of Treason unto Ziba tho' too hastily Feodal are those which accrue to every Feodal Lord as well as to the King by reason of his Seignory and of all the fruits of Tenure none so great as this if we may call it a fruit where the feud or tree it self resulteth back unto the Lord. Let us see therefore if we find any of these Feodal Escheats among the Saxons There is a shrewd text I confess in Canutus his Laws Qui fugiet à domino suo vel socio pro timiditate in expeditione navali vel terrestri perdat omne quod suum est suam ipsius vitam manus mittat dominus ad terram quam ei dederat si terram haereditariam habeat ipsa in manum Regis transeat Here is the appearance of a Tenure of a Feud of a Forfeiture and of an Escheat The Tenure lyeth between the Lord and his fugitive Vassal whom the Saxons and Germans called his Man we his Tenant The Feud in the Land quam dâ—mâ—nus â—i dederat The forfeiture in fugiendo in the Vassals running away And the Esâ—heat in the Lord 's seizing of the land manus mittat dominus in terram quam ei dederat Let the Lord take back the estate which he gave in the temporary feud But for the hereditary land he saith transeat non redeat in manum Regis All this is nothing in our case for I declared in the beginning that our question was fix'd upon such feuds as the Law of England taketh notice of at this day that is of feuds after they were become hereditary and perpetual not of those mention'd by Gerardus Niger which were temporary as at will of the Lord or for years or for life like them here intended by Canutus This very Law observeth the difference and discovereth also that feuds were not hereditary in his time and therefore giveth the feodal land being but a temporary estate back unto the Lord in whom the Reversion was by inheritance as a feodal right but giveth the hereditary Lands unto the King as a Regal Escheat for that there was no mean or intervenient Lord to claim them by any feodal tenure for that the hereditary lands among the Saxons otherwise called Bocland were holden of no body nor subject to any feodal service as we have often declared and could not therefore Escheat unto any feodal Lord. The Kentish custom of the father to the Bough and the son to the Plough suggesteth as much and sheweth also to have been the general use of England till the Conquerour introducing hereditary feuds put upon us therewith these greater feodal servitudes of Wardship Marriage Escheats c. So that the hereditary lands not being feodal in the Saxon's time nor the feodal lands hereditary there could then be no feodal Escheats among them And I take it to be considerable whether the land resumed by the Lord upon his Vassal's running away be properly an Escheat by the Law of Canutus or rather a penalty only impos'd in this particular case CHAP. XXIV Thaneland and Reveland what no marks of Tenure but distinctions of Land-holders THere is yet another assertion rather shewed than proved That the Thani majores or King's Thanes held by personal service of the King's person by Grand Serjanty or Knights-service in Capite And the reason following is that the land so held was in those times called Thane-land as land holden in Socage was called Reveland so frequently in Doomsday Haec terra fuit terra Regis Edwardi Thainland sed postea conversa est in Reveland Coke's Instit § 117. Thus the Report dischargeth it self upon my Lord Coke whose words be these It is to be observ'd that in the book of Doomsday land holden by Knights-service was called Thainland and land holden by Socage was called Reveland I reverence the opinion of that famous Lawyer with admiration but I suppose he speaketh not this ex tripode juridico For it is impossible that it and that which is before deliver'd out of the
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
being now corruptly so called for Tridings or Thrithings Those things therefore that could not be determined in the Hundred-Courts either for difficulty or miscarriage thereof were from thence brought unto the Trithing where all the principal men of three or more Hundreds being assembled did debate and determine it or if they could not did then send it up nnto the County Court to be there decided as in Parliament by the whole body of the County This appeareth by the Laws of Edward the Confessor Cap. 34. where it is said Erant aliae potestates super Wapentachia quas vocabant ðriðingas c. that is There were other Jurisdictions over Wapentakes or Hundreds which they called Thrithings because they contained a third part of the Province or County And those that governed these Thrithings were thereupon called Thrithingreves before whom were brought all causes that could not be determined in the Wapentakes or Hundreds Tho' I find no such division of our County of Norfolk yet I see the use thereof remained there both till and after the times of the Conquest For William Rufus in a controversie of the Abbot of Ramsie's about the Town of Holme in Norfolk sent his Writ to H. Chamberlyn then Trithingreve as it seemeth over that part of the County commanding him to assemble three Hundreds and an half at a place called Fliâ—ham-burrough which to this day beareth that name and is the site of the Hundred of Frebridge there to determine the said controversie which Writ for reviewing of the ancient customs of the Kingdom I will here adjoin as it standeth in the book of Ramsey Abbey Sect. 197. Willielmus Rex Angl. H. Camerario salutem Fac convenire consedere tres Hundredos dimidium apud Flicceham-Burgh propter terram illam de Holm quae pertinet ad Ringstedam quam Abbas Ramesiae reclamat ad victum vestitum Monachorum suorum Et si Abbas poterit ostendere ratione testimonio Comprovincialium quod antecessor illius eandem terram habuerit eo die quo pater meus fuit vivus mortuus tunc praecipio ut illam terram omnia quae juste pertinent ad Abbathiam suam pacifice honorifice habeat Teste R. Bigod apud Wind. Out of which Writ I conjecture that this H. Camerarius to whom it was directed might be Trithingreve of that part of the County the rather for that the Writ nameth him not Vicecomes as in the next precedent it doth another man viz. Will. Rex O. Vicecomiti salutem c. And that these three Hundreds and an half were to be Judges of the cause it appeareth by the words fac consedere that is cause them to sit down together For Magistrorum Judicum est sedere famulorum Ministrorum stare Therefore it is said Exod. 18. 13. Moses sat to judge the people and the people stood about him whereupon Hugo also noteth Magistrorum est sedere To this purpose also is the Law of H. I. ca. 8. Si aliquis in Hundrâ—… agendorum penuria judicium vel casu aliquo transferendum sit in dâ—us vel tres vel amplius Hundredos respectetur justo fine claudendum Qu. But it seemeth that these Judges were sworn to do right as well as those before mentioned in the Hundred Court And that our course now used for taking a Jury out of many Hundreds in the County for tryal of a cause arising in one Hundred took the beginning from the tryal in the Trithing and that thereupon the Trithing Court grew out of use The Alderman of the County whom confusedly they call an Earl was in parallel equal with the Bishop and therefore both their estimations valued alike in the Laws of Ethelstane at eight thousand Thrymses He was a man learned in the Laws and had the government of the whole Shire and cognizance over all inferiour Courts and persons both in civil matters and criminal For which purpose he held his ordinary Court by the Shreve once every month and there resorted as Suitors and bound by duty all the Lords of Mannours and principal men of the County with the rest of the Free-holders who were not only assistants but Judges with him of all matters there depending whether entred there originally or coming thither by appeal or provocation from the inferiour Courts Ll. Edw. senioris cap. ult Ic Æ¿ille ðat aelc geresa hebbe gemoâ—e c. I will that every Sheriff hold his Court about every four weeks and that he do right equally to every man and make an end of all Suites under the pain before expressed As the Bishop had twice in the year two general Synods wherein all the Clergy of his Diocess of all sorts were ty'd to resort for matters concerning the Church so also was there twice in the year a general assembly of all the Shire for matters concerning the Common-wealth wherein without exception all kind of Estates were required to be present Dukes Earls Barons and so downward of the Laity and especially the Bishop of that Diocess among the Clergy For in those days the Temporal Lords did often sit in Synod with the Bishops and the Bishops in like manner in the Courts of the Temporalty and were therein as by and by shall appear not only necessary but principal Judges themselves Ll. Canuti Regis par 2. ca. 17. The Shyre-gemot for so the Saxons called this assembly of the whole Shire shall be kept twice a year and oftner if need require wherein the Bishop and the Alderman of the Shire shall be present the one to teach the Laws of God the other the Law of the Land This great assembly was by the Laws of Ethelstan ca. 20. to be proclaimed or published a sennight before hand and every man tyed thereupon to be present at it and in the mean time either to satisfie the wrong he had done to another or to undergo the penalty which if he refused all he had was presently to be seâ—sed and himself put to find sureties for his appearance to answer But because this notable assembly otherwise called by the Authors of that time Mallum and Placitum generale was the supreme Court of County-Justice wherein all things of what sort soever were to be determined we will take a little scope in description thereof Shewing first more particularly who were bound to give their attendance here Then what lay in cognizance of this Court And thirdly in what steps they proceeded to the determination of the same All which because they cannot be more authentically delivered then out of the Law it self I will even from thence report it as it standeth in Ll. H. I. ca. 8. Sicut antiqua fuerat institutione formatum c. As it was devised by an ancient institution and confirmed by true report that the general pleas of the Counties ought to be assembled in every Province of England at certain places and before certain Judges at certain times thereto appointed and
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-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 all these was the Tenant by Knights-service ty'd by his oath of Fealty swearing to be feal and leal As the oath was at those times interpreted as well by Divines and Canonists as by Feodists and Lawyers And as these were inherent to this Tenure of Common right so was there many other grievous exactions impos'd by the Lords upon their Tenants some by custom of the Mannour some by Composition upon granting the Fee and many by Signioral Authority as tho' the Lord besides his Legal Power might do some things like the King by Prerogative By Custom when the Lord or Lady came into the Mannour the Bailiff was to present them 18 oras denar and every of their servants 10s. with some summs of mony as gratuities ut essent laeti animo That the Tenants should pay 32d. for every daughter they married It was an ordinary custom that Lords might take not only of their Tenants but of all the Country thereabout Victuals and all other necessaries for furnishing their Castles which how grievous it was may well enough be conceiv'd tho' the Statute that restrain'd it did not testifie it So other Lords took provision for their houshold and hospitality within their Mannours By Composition as to have their Tenants attend them with horse and man in their journies whom they call'd Road-knights To present them yearly at times Horses Hawks and other things of profit and pleasure By Signioral Authority as to lye and feast themselves and followers call'd Coshering at their Tenants houses and when any matter of extraordinary charge fell upon them then to extort the same amongst their Tenants which the Irish about fourty years since of my own knowledge still continu'd calling it Cuttings according to our old word Tallagium But among us it was taken away by the Magna Charta of King John I speak not of the innumerable Carriages Angaries and Vexations with which they otherwise harrowed if not plagued their Tenants Yet must I not let that pass which every where was then in use for Lords of Castles to imprison men at pleasure to hold and keep distresses there against common justice and to do many outrages all about them Wherein the Lords of Mannours imitating them would also imprison their Tenants and followers which Custom I saw also yet not laid down in Ireland fourty years since For a Meane-Lord would ordinarily say upon offence taken against a Churle c. Take him and put him in bolts But let Matthew Paris who liv'd long after many of these oppressions were abolish'd tell you the fashions of those times Every Lord having this authority over his Tenant the Superiour as comprehending them all and holding in Capite was tyed to the King to see all under his tenure to be of good Government good behaviour and forth-coming whensoever they should be demanded to answer any misdemeanour This appeareth by the Laws of Edward the Confessor where it is said Archiepiscopi Episcopi Comites Barones omnes qui habuerint Sacam Socam c. milites proprios servientes sc dapiferos pincernas c. sub suo friburgo habeant That is sub sua fide-jussione de se bene gerendo By reason whereof whatsoever those their Lords agreed or disagreed unto in matters of the State and Common-wealth it did bind every of them their inferiors Unto whom they themselves might then also appoint Laws and Ordinances in their own Courts And this is that which Tacitus affirmeth to have been the ancient manner of the Germans our Ancestors Agricolis suis jus dicere where under the word Agricolis he intendeth all them whom we call Tenants Hence then it comes to pass that in making Laws of the Kingdom the common people were not consulted with but only the Barons and those which held in Capite who then were call'd Consilium Regni And the common people being as I said by way of tenure under one or other of them did then by him that was their chief Lord as by their Tribune or Procurator and as now by the Knights of the Shire consent or dissent in Law-making and are not therefore nam'd in the title of any ancient Law Look Doomsday-book and there ye shall see the whole Kingdom divided only among the Barons and great Persons and the whole Commons of the Kingdom distributed and plac'd under some of them tho' not by name yet by number in their several qualities Let us then see how the practice of those ancient ages agreed with this Theoreme King Ina made his Laws by the advice of Kenred his father and as he saith himself Heddis Erkenwaldi Episcoporum meorum omnium Aldermannorum i. e. Procerum meorum seniorum sapientum Regni mei multa aggregatione servorum Dei which is of Church-men as I take it Alured briefly Consilio sapientum meorum Edward the Elder proposeth his Laws not as Senatus-consultum but as Edictum Principis viz. Ego Edouardus Rex iis omnibus qui Reipub. praesunt etiam atque etiam mando ut c. And after by the absolute words Praecipio Statuimus Volo Yet those wherein he and Guthrun the Dane joyned are call'd Senatus-consulta Ethelstane made his Ex prudenti Vlfhelmae Archiepiscopi aliorumque Episcoporum suorum consilio nec-non omnium Optimatum sapientum mandato suo congregatorum Edmund in a great Assembly Tam Ecclesiasticorum quà m Laicorum cui interfuerunt Oda Wulstanus Archiep. plurimique alii Episcopi Edgar In frequenti sapientum Senatu Ethelred In sapientum Concilio Canuius saith Sapientum adhibito Consilio per omnem Angliam observari praecipio As for Edward the Confessor his Laws come not to us as they were composed by himself but as the Paragraphs of them were collected by the Conqueror and augmented afterward In which collection there is no mention made of the manner of their Institution But reciting of a passage of St. Austens touching Tithes it is spoken as of former time that Haec concessa sunt à Rege Baronibus populo meaning the several kinds of Tithes there mention'd But whether these words extend to a concession of them by Parlament as we now call it or by a voluntary contribution of them yeilded unto by the King the Barons and the people according to the Canons of the Church I leave to others to determine To come to times of the Conquerour wherein Novus seclorum nascitur ordo and from whence as from a new period we must now take all our projections The great establishment of his own and of Edward the Confessor's Laws is said in the title to be that which Gulielmus Rex Anglorum cum Principibus suis constituit post conquisitionem Angliae Other Authors instead of Principibus have Barones And tho' all his Laws for the most part were ordain'd by his Charter in his own name only yet they seem to be made by the
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.
pag. 89. concerning this Treatise I shall here briefly exhibit some particulars which I acknowledge to have gather'd from an ample and most judicious discourse on this Subject written by the Learned Sir Henry Spelman Knight in 1614. very well worthy to be made publick THE Occasion of this Discourse ABout fourty two years since divers Gentlemen in London studious of Antiquities fram'd themselves into a College or Society of Antiquaries appointing to meet every Friday weekly in the Term at a place agreed of and for Learning sake to confer upon some questions in that Faculty and to sup together The place after a meeting or two became certain at Darby-house where the Herald's-Office is kept and two Questions were propounded at every meeting to be handled at the next that followed so that every man had a sennight's respite to advise upon them and then to deliver his opinion That which seem'd most material was by one of the company chosen for the purpose to be enter'd in a book that so it might remain unto posterity The Society increased daily many persons of great worth as well noble as other learned joyning themselves unto it Thus it continu'd divers years but as all good uses commonly decline so many of the chief Supporters hereof either dying or withdrawing themselves from London into the Country this among the rest grew for twenty years to be discontinu'd But it then came again into the mind of divers principal Gentlemen to revive it and for that purpose upon the day of in the year 1614. there met at the same place Sir James Ley Knight then Attorney of the Court of Wards since Earl of Marleborough and Lord Treasurer of England Sir Robert Cotton Knight and Baronett Sir John Davies his Majestie 's Attorney for Ireland Sir Richard St. George Knt. then Norrey Mr. Hackwell the Queen's Solicitor Mr. Camden then Clarentieux my self and some others Of these the Lord Treasurer Sir Robert Cotton Mr. Camden and my self had been of the original Foundation and to my knowledge were all then living of that sort saving Sir John Doderidge Knight Justice of the King 's Bench. We held it sufficient for that time to revive the meeting and only conceiv'd some rules of Government and limitation to be observ'd amongst us whereof this was one That for avoid offence we should neither meddle with matters of State nor of Religion And agreeing of two Questions for the next meeting we chose Mr. Hackwell to be our Register and the Convocator of our Assemblies for the present and supping together so departed One of the Questions was touching the Original of the Terms about which as being obscure and generally mistaken I bestow'd some extraordinary pains that coming short of others in understanding I might equal them if I could in diligence But before our next meeting we had notice that his Majesty took a little mislike of our Society not being enform'd that we had resolv'd to decline all matters of State Yet hereupon we forbare to meet again and so all our labours lost But mine lying by me and having been often desir'd of me by some of my Friends I thought good upon a review and augmentation to let it creep abroad in the form you see it wishing it might be rectify'd by some better judgement SECT I. Of the Terms in general AS our Law books have nothing to my knowledge touching the original of the Terms so were it much better if our Chronicles had as little For tho' it be little they have in that kind yet is that little very untrue affirming that William the Conquerour did first institute them It is not worth the examining who was Author of the errour but it seemeth Polydore Virgil an Alien in our Common-wealth and not well endenized in our Antiquities spread it first in Print I purpose not to take it upon any man's word but searching for the fountain will if I can deduce them from thence beginning with their definition The Terms be certain portions of the year in which only the King's Justices hold plea in the high Temporal Courts of causes belonging to their Jurisdiction in the places thereto assigned according to the ancient Rites and Customs of the Kingdom The definition divides it self and offers these parts to be consider'd 1. The Names they bear 2. The Original they come from 3. The Time they continue 4. The Persons they are held by 5. The Causes they deal with 6. The Place they are kept in 7. The Rites they are performed with The parts minister matter for a Book at large but my purpose upon the occasion impos'd being to deal only with the Institution of the Terms I will travel no farther than the three first stages of my division that is touching their Name their Original and their Time of continuance SECT II. Of the Names of the Terms THe word Terminus is of the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifieth the Bound End or Limit of a thing here particularly of the time for Law matters In the Civil Law it also signifieth a day set to the Defendant and in that sense doth Bracton Glanvil and others sometimes use it Mat. Paris calleth the Sheriff's Turn Terminum Vicecomitis and in the addition to the MSS. Laws of King Inas Terminus is applied to the Hundred-Court as also in a Charter of Hen. I. prescribing the time of holding the Court. And we ordinarily use it for any set portion of Time as of Life Years Lease c. The space between the Terms is named Vacation à Vacando as being leasure from Law business by Latinists Justitium à jure stando because the Law is now at a stop or stand The Civilians and Canonists call Term-time Dies Juridicos Law-days the Vacation Dies Feriales days of leasure or intermission Festival-days as being indeed sequester'd from troublesome affairs of humane business and devoted properly to the service of God and his Church According to this our Saxon and Norman Ancestors divided the year also between God and the King calling those days and parts that were assigned to God Dies pacis Ecclesiae the residue alloted to the King Dies or tempus pacis Regis Divisum Imperium cum Jove Caesar habet Other names I find none anciently among us nor the word Terminus to be frequent till the age of Henry II. wherein Gervasius Tilburiensis and Ranulphus de Glanvilla if those books be theirs do continually use it for Dies pacis Regis The ancient Romans in like manner divided their year between their Gods and their Common-wealth naming their Law-days or Term-time Fastos because their Praetor or Judge might then Fari that is speak freely their Vacation or days of Intermission as appointed to the service of their Gods they called Nefastos for that the Praetor might ne fari not speak in them judicially Ovid Fastorum lib. 1. thus expresseth it Ille Nefastus erat per quem tria verba silentur Fastus erat per
the Original of our Terms only from the Romans as all other Nations that have been subject to their Civil and Ecclesiastical Monarchy do and must The ancient Romans whilst they were yet Heathens did not as we at this day use certain continued portions of the year for a legal decision of Controversies but out of a superstitious conceit that some days were ominous and more unlucky than others according to that of the Aegyptians they made one day to be Fastus or Term-day and another as an Aegyptian day to be Vacation or Nefastus Seldom two Fasti or Law-days together yea they sometimes divided one and the same day in this manner Qui modo Fastus erat mane Nefastus erat The afternoon was Term the morning Holy-day Nor were all their Fasti applyed to Judicature but some of them to other meetings and consultations of the Common-wealth so that being divided into three sorts which they called Fastos proprie Fastos Endotercisos Fastos Comitiales containing together 184. days through all the Months of the year there remained not properly to the Praetor as Judicial or Triverbial Days above 28. Whereas we have in our Terms above 96. days in Court besides the Sundays and exempted Festivals falling in the Terms which are twenty or there about Yet Sir Thomas Smith counts it marvellous that three Tribunals in one City in less than the third part of the year should rectifie the wrongs of so large and populous a Nation as this of England But let us return where we left off CHAP. III. Of Law-days among the first Christians using all times alike TO beat down the Roman superstition touching observation of days against which St. Augustine and others wrote vehemently the Christians at first used all days alike for hearing of Causes not sparing as it seemeth the Sunday it self thereby falling into another extremity Yet had they some precedent for it from Moses and the Jews For Philo Judaeus in the life of Moses reporteth that the cause of him that gather'd sticks on the Sabbath-day was by a solemn Council of the Princes Priests and the whole Multitude examined and consulted of on the Sabbath-day And the Talmudists who were best acquainted with the Jewish Customs as also Galatinus the Hebrew do report that their Judges in the Council called Sanhedrim sate on the week-day from morning to night in the Gates of the City and on the Sabbath-day and solemn Festivals in the walls So the whole year then seemed a continual Term no day exempt And they that seek the Original of our modern Laws among them do but spend their time in vain unless for some things impos'd on them by the Roman Emperours when they became Subjects How this stood with the Levitical Law or rather the Moral I leave to others CHAP. IV. How Sunday came to be exempted BUt for reformation of the abuse among Christians in perverting the Lord's day to the hearing of clamorous Litigants it was ordained in the year of our Redemption 517. by the Fathers assembled in Concilio Taraconensi cap. 4. after that in Concilio Spalensi cap. 2. and by Adrian Bishop of Rome in the Decretal Caus 15. quaest 4. That Nullus Episcopus vel infra positus Die Dominico causas judicare al. ventilare praesumat No Bishop or inferiour person presume to judge or try causes on the Lord's day For it appeareth by Epiphanius that in his time as also many hundred years after Bishops and Clergy-men did hear and determine causes lest Christians against the rule of the Apostle should go to Law under Heathens and Infidels And it is said in the 1 st Epistle of Clement if it were truly his that S. Peter himself did so appoint it Concil Tom. 1. p. 33. This Canon of the Church for exempting Sunday was by Theodosius fortified with an Imperial Constitution whilst we Britains were yet under the Roman Government Solis die quem dominicum recte dixere majores omnium omnino litium negotiorum quiescat intentio Thus was Sunday redeemed from being a part of the Term but all other days by express words of the Canon were left to be Dies Juridici whether they were mean or great Festivals For it thus followeth in the same place of the Decretals Caeteris vero diebus convenientibus personis illa quae justa sunt habent licentiam judicandi excepto criminali or as another Edition reads it exceptis criminalibus negotiis The whole Canon is verbatim also decreed in the Capitulars of the Emperours Carolus Ludovicus CHAP. V. How other Festival and Vacation days were exempted NOw let us see how other Festivals and parts of the year were taken from the Courts of Justice The first Canon of note that I meet with to this purpose is that in Concilio Triburiensi ca. 26. in or about the year 895. Nullus Comes nullusque omnino secularis diebus Dominicis vel Sanctorum in Festis seu Quadragesimae aut jejuniorum placitum habere sed nec populum illo praesumat cohercere After this the Council of Meldis Cap. 77. took Easter-week commonly called the Octaves from Law business Pascae hebdomade feriandum forensia negotia prohibentur By this example came the Octaves of Pentecost St. Michael the Epiphany c. to be exempted and principal Feasts to be honoured with Octaves The next memorable Council to that of Tribury was the Council of Erpford in Germany in the year 932. which tho' it were then but Provincial yet being after taken by Gratian into the body of the Canon Law it became General and was imposed upon the whole Church I will recite it at large as it standeth in Binius for I take it to be one of the foundation-stones to our Terms Placita secularia Dominicis vel aliis Festis diebus seu etiam in quibus legitima Jejunia celebrantur secundum Canonicam institutionem minime fieri volumus Insuper quoque Gloriosissimus Rex Francorum Henricus ad augmentum Christianae Religionis or as Gratian hath it Sancta Synodus decrevit ut nulla judiciaria potestas licentiam habeat Christianos sua authoritate ad placitum bannire septem diebus ante Natalem Domini à Quinquagesima usque ad Octavas Paschae septem diebus ante Nativitatem Sancti Johannis Baptistae quatenus adeundi Ecclesiam orationibusque vacandi liberius habeatur facultas But the Council of St. Medard extant first in Burchard and then in Gratian enlargeth these Vacations in this Manner Decrevit Sancta Synodus ut a Quadragesima usque ad Octavam Paschae ab Adventu Domini usque ad Octavam Epiphaniae nec-non in Jejuniis quatuor temporum in Litaniis Majoribus in diebus Dominicis in diebus Rogationum nisi de concordia pacificatione nullus supra sacra Evangelia jurare praesumat The word jurare here implyeth that they should not try Law-causes or hold plea
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 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
conceive under your Lorâ—sâ—â—â— favour any further verification And for the other such of the particularâ— aâ— are not included in the Verdict there are in readiness those who will testiâ—iâ— the â—ame And for the better expedition of the whole business if your 〈…〉 all onâ—◠〈◊〉 what are the special points in Law to be insisted upon I will 〈…〉 â—ll 〈◊〉 spâ—â—â— cause my Council to be ready to attend you by whom I desire to give your Lordships satisfaction And so commending my Love and Service to your Lordships and forbearing to be further troublesome I rest Your Lordships very loving Friend G. Cant. Lambeth Oct. 13. 1621. A Note of my Lord Keepers at the bottom of the Letter To this Letter we answered that we had no Warrant to hear Counsel noâ— could we in justice hear any unless the credit of the Church and honour of the King had their Council likewise on the other side Jo. Linc. C. S. The opinion of the Bishops and others to whom the consideration of Arch-bishop Abbot s Case was referred in a Letter to his Majesty May â—t please your Majesty WHereas we receiv'd a command from your Majesty under your Royal 〈◊〉 to deliver our opinions unto your Majesty whether an Irregularity or 〈◊〉 might arâ—se by this unfortunate Act which God permitted to come to pass by â—hâ—â—and of the most Reverend Father in God the Lord Arch-bishop of Canterbury â—â—ooting in a Cross-bowe at a Deer in Bramsil-park as also of the cure and 〈…〉 the same Irregularity in case it should be so adjudgd 〈◊〉 do in all 〈…〉 humility return this account unto your Majesty 〈…〉 the first 〈…〉 be contracted by this Act in the person of my Lord 〈…〉 grâ—ater part of our number could assent or agree Because 〈…〉 and 〈◊〉 themselves are so general and so ready to entertain distinctions and limitations the Doctors and Glosses so differing inferences and disputes so peculiar to every man's conceit and apprehension authorities of Canonists and Casuists so opposite in this very Case in hand that we could not return unto your Majesty any unanimous resolution or opinion in the same For the second Whether any Scandal may arise out of this Act We are of opinion a Scandal may be taken by the weak at home and the malitious abroad tho' most of us believe there was no Scandal given by the said Right Reverend Father For the third We are all agreed not only that a Restitution or Dispensation may be granted by your Majesty either immediately under the Great Seal or which most of us in all humility represent unto your Majesty by the hands of some Clergy-men Delegated by your Majesty for that purpose or what other way your Majesty shall be pleas'd to extend that favour But withal we are of opinion that it is most sitting for the said Reverend Father both in regard of his Person and the honour of the Church to sue unto your most Gracious Majesty for the said Dispensation in majorem cautelam si qua forte sit Irregularitas All which craving pardon for our weakness we do in all humbleness submit to the decision of your Majesties most profound and incomparable Wisdom Jo. Linc. elect C. S. Geo. London La. Winton Jo. Roffens Guil. Menevens elect Valen. Exon. elect Henr. Hobart Jo. Doddridge H. Marten Ny Stywarde Cir. di 10. Nov. 1621. DISPENSATIO CUM GEORGIO Archiepiscopo CANTUARIENSI Super IRREGULARITATE REverendissimo in Christo Patri Georgio Providentia Divina Cantuariensi Archiepiscopo totius Angliae Primati Metropolitano Johannes Lincoln Georgius London Lancelotus Winton Samuel Norwicens Thomas Coven Lich. Arthurus Bathon Wellen. Nicolaus Eliensis Georgius Cicestrensis permissione divina respective Episcopi de Provincia Cantuar. Salutem gratiam in Domino sempiternam Recipimus Literas Commissionales à Serenissimo in Christo Principe ac Domino nostro domino Jacobo Dei gratia Angliae Scotiae Franciae Hiberniae Rege fidei defensore c. sub magno sigillo Angliae confectas nobis directas quarum tenor sequitur in haec verba Jacobus Dei gratia Angliae Scotiae Franciae Hiberniae Rex fidei defensor c. Reverendo in Christo Patri perdilecto perquam fideli Consiliario nostro Johanni Episcopo Lincoln Custodi magni sigilli nostri Angliae ac Reverendo in Christo Patri Georgio Episcopo London ac Reverendo in Christo Patri ac perdilecto perquam fideli Consiliario nostro Lanceloto Episcopo Winton necnon Reverendis in Christo patribus Samueli Norwicen Thomae Coven Lichen Nicholao Elien Arthuro Bathon Wellen. Georgio Cicestren respective Episcopis Salutem gratiam Humili nobis supplicatione exposuit Reverendissimus in Christo Pater perdilectus per fidelis Consiliarius noster Georgius Cantuar. Archiepiscopus quod cum nuper in parco quodam vocato Bramzil-park apud Bramzil in Comitatu nostro Southamton per honorandum virum ejusdem parci dominum rogatus invitatus damam sagitta figere destinaret debita adhibita diligentia ne quid inde periculi cuiquam eveniret forte tamen accidit ut sagitta ab eo emissa in feram directa in quendam Petrum Hawkins adhunc Parci praedicti Custodem improvide temere se periculo ictus sagittae exponentem per locum ubi a praefato Archiepiscopo conspici non potuit cum impâ—tu transcurrentem incideret eique brachiam sauciaret ex quo quidem vulnâ—re â—ra unius horae spacium expirabaâ— quamvis propter hujusmodi homicidium casuale nulla praefati Archiepiscopi culpa sed ipsius occisi temeritate contigâ—ns idem Reverendissimus Pater bona fretus conscientia se nullam omnino irregularitatem incurrisse persuasissimum habeat provida tamen animi circumspecâ—ione ut omnis infirmorum mentibus scrupulus eximatur secum a nobis super omni omnimoda irregularitate irregularitatis nota aut suspicione si quam praemissorum ratione contraxisse forsitan aliquibus videri possit ad cautelam ex superabundanti dispensari humiliter supplicavit Sciatis igitur quod nos petitionis hujusmodi vim â—fficaciam regâ—o animo pro affectu ponderantes de veritate praemissorum solicita indagatione certiores facti ut piam Reverendissimi Patris intentionâ—m â—ac in re sâ—quamur ad abundatiorem cautelam persidelis Consiliarii nostri 〈◊〉 â—ue de Eâ—clâ—siâ— Republica mâ—râ—â—i Praeâ—ulis statum famam dignitatem nostri etiam patrocinii minime teneri firmare dignoscamur ad praesentem venimus dispositionem Vobisque vel aliquibus sex vestrum quorum vos praefat Johannem Lincoln Georgium London Lancelotum Winton Samuelem Norwicen respective Episcopos quatuor esse volumus de quorum etiam side judicio industria plurimum confidimus mandamus de gratia nostra speciali ex auctoritate nostra regia suprema Ecclesiastica qua fungimur pro nobis haeredibus
of Peace between their Neighbours Congratulations Embassages and such like Viand But what moves you to let slip King John Edward II. Richard II. Henry VI. and Richard III. Selv. Not for that they were free from foreign Expences which is not possible for it oppressed them all but for that most of them omitted such necessary charge as in policy they ought to have undergone both for strengthening themselves with Friends and weakning their suspected Enemies such as when occasion serv'd were like to do them damage For if Edw. III. had not by this means fortify'd himself with the alliance and friendship of the noble Knight Sir John of Henault the Dukes of Brabant and Gelderland the Arch-bishop of Colein the Marquess Gulâ—ck Sir Arnold de Baquetien the Lord Walkenbargh and others and also greatly impaiâ—'d the power of the French King by winning the Flemings from the obedience of the Earl of Flanders his assured friend and by procuring the stay of much of the aid by him expected out of the Empire Scotland and other places he had not only fail'd in his French attempts but also put his Kingdom of England in hazard by the Scots who were sure of all the help and backing that France could any way afford them So had it not been for the aid and friendship of the French King the Earls of Bullogne St. Paul the Gascoines and other foreigners Henry III. had been bereav'd of his Kingdom by his own Subjects which notwithstanding he held with great difficulty So the rest likewise But on the contrary part the others whom you nam'd neglecting this right precious tho' costly ground work not only wanted it when need required but with the ruine of their People State and Kingdom lost their Crown and dearest lives by the infernal hands of cursed Murtherers their rebellious Subjects getting once the better hand Viand But Edw. II. used means also to have procured the amity and assistance of divers foreigners as the Duke of Britain the Lord Biskey the Lady Biskey Governess of the King of Castile and Leon James King of Arragon and others And Rich. II. sought the like of the hands of the French King and so the rest likewise of others Selv. True not examining the dependencies of time present they imagined in their prosperity that things to come would ever have good success and therefore deferr'd still the doing of it till extream necessity compell'd them to it and then their Estates being utterly desperate and ruinated no man willingly would lend them aid or ear Knowing that when the fury of the disease hath once possessed the vital places it is then too late to apply Physick This reason made the Princes you speak of to refuse King Edward II. And as for Richard II. when the French King saw how he was entangled and overladen with dangerous Rebellions and Divisions of his Nobles and Commons at home war in Scotland Flanders Spain Portugal Ireland sending forces against the Infidels releiving the expell'd King of Armenia and many other such turbulent affairs he then thought and truly that there was more to be gotten by being his Enemy than his Friend and taking advantage of that opportunity defied him also and warr'd upon him So that King Richard wholly void of aid and hope fell into the hands of his proud Barons and lost both Crown and Life In like miserable sort stood the case with Henry VI. For being once descended to the lowest exigent who almost durst releive him or any of the rest for fear as our Proverb saith of pulling an old house upon his own head Whereas if in their flourishing estate they had employ'd their treasure to encounter future perils being yet afar off they had no doubt securely held their Crowns and perhaps without much business illuded all the practices of their Enemies drawing nearer Had Richard II. at the time when being in France he bestow'd the value of 10000l. in gifts upon the fickle French King stay'd there and employ'd the other 300000. and odd marks by him also wasted at that bravery in gaining the amity of his neighbour Princes to serve his turn when need should be it is not unlikely but afterwards it might have sav'd all the rest For it is a good rule that is taught us in the art of Fencing to break the blow or thrust that might endanger us as far from our Bodies as we can For as I said before when things be drawn to the last period the time of help is past according to the saying of Hecuba to her betray'd husband being about to arm himself Quae mens tam dira miserrime conjux Impulit his cingi telis aut quo ruis inquit Non tali auxilio nec defensoribus istis Tempus eget non si ipse meus nunc afforet Hector Most Royal therefore are the Providence and Expences of her Excellent Majesty who as it were with Linceus eyes looking into the lowest secrets of the practices of her Enemies hath not only for these 36. years utterly cancell'd and made them frustrate but foreseeing also what mighty consequences may depend on mean beginnings omitteth no diligence to defeat them whilst they are yet in the shell or so to environ the mark whereat they are levell'd as being hatch'd they shall be able to perform nothing Knowing it to be far greater wisdom to preserve the body whilst it is sound from all infirmities than by admitting a dangerous disease to gain the credit of an excellent cure And tho' mony be the Blood wherein the Life of all Common-wealths as in a nest is cherisht yet nature teacheth that to preserve health and cure an impostumate disease we ought to let blood out and that sometimes in great abundance And as Themistocles said Pecunia nervus belli mony is also the sinews of war and look how necessary Peace is in a Common-wealth so necessary is War to beget Peace for Peace is Belli filia the daughter of war But to return to our matter lest we fare like the unskilful hounds that undertake a fresh hare when they have hunted the first till she be almost spent It appeareth by that that hath been said that a main Port by which our treasure hath been vented from us heretofore is now shut God be thank'd and that instead thereof no new is opened So that thereby our store must needs remain better by us than it hath and we by consequence must be the richer It is also to be added that whereas in former times much of the treasure that came into the land was buried up in superstitious employments as about Images Shrines Tabernacles Copes Vestiments Altar-cloaths Crucifixes Candlesticks c. by means whereof the Common-wealth became no whit richer than if that part so employed had never come within the Land Now we do not only retain that Idolatrous charge still in our purses which makes us much the wealthier but the rest also which for many hundred years together was so employ'd is
now to our greater enrichment return'd again amongst us by dissolution of these Popish Ceremonies Viand You may also reckon the mony given to maintenance of Priests Monkery Lights Obits Anniversaries and all the plate and treasure of the Clergy at that time to be of the same sort Selv. That did Edward the first well consider and therefore to the end that he might dig it out of the grave and bring it abroad again among the people that had need thereof he suffer'd the matter to be so handl'd by one of his Treasurers that certain Captains appointed to work the feat placing their Souldiers in every quarter through the Realm made search at one time in July at three of the clock in the afternoon for all such mony were it hid or laid up in hallowed places and taking the same away brought it unto the King who dissembling the matter as he that stood in need excused the act done by his Treasurer and thought it no offence but rather a good work Besides all this there is yet another means whereby the Treasure of our Land must needs be much encreased and that is by divers good Laws and Statutes made both for causing it to be brought into the Realm and also for containing it within the lists of the same when it is come And that is by the Stat. 14. Edw. III. whereby it was enacted that every man denizen or stranger that should transport any wooll out of the Land should find sufficient sureties to bring again unto the King's Exchange for every sack of wooll transported plates of Silver to the value of two marks And by the Statute of 3. Henry V. confirm'd and quickned by 32. Hen. VI. which provided that every Merchant-stranger buying wooll in England not coming to the Staple to be sold shall bring to the Master of the Mint of the Tower of London of every sack one ounce of Bullion of Gold and in the same manner of three pieces of Tin one ounce of Bullion of Gold or the value in Bullion of Silver upon pain of forfeiture of the same Woolls and Tin or the value thereof to the King It is provided also for containing of mony within the Land that all Merchant-strangers shall employ all the mony receiv'd by them within this Realm upon the Merchandise and Commodities of this Realm deducting their reasonable expences and that they shall give sufficient surety for doing hereof and the trespasser to forfeit and be punished grievously as in the Statutes is contain'd 3. Hen. VII affirming and enlarging 14. Edw. IV. and many other of like effect And by 4. Hen. VII that no man dwelling in England shall pay or deliver wittingly to any Merchant or other born out of the King's obedience for any Merchandise or Wares or in any other wise any Gold coined Plate Vessels Bullion Jewels of Gold or Silver upon pain of forfeiture thereof And by 14. Edw. IV. affirm'd by 4. Hen. VII and for a time continued by 1. and 3. Henry VIII with a mitigation of the bloody penalty all men except such as had the King's Licence or were dispensed with by those Statutes were utterly inhibited from carrying out of the Realm any manner of Coin plate vessel massy Bullion jewels of Gold or Silver Which Law and many other of the like effect tho' they continue not now in force yet the fruit thereof remaineth to us still as Children enrich'd by their Fathers sparings Besides it is not altogether to be passed in silence that our treasure is somewhat increased by the Gold and Silver try'd out of our own Mines here in England Which tho' it be little or nothing in respect that in this latter age we have wimbl'd even into the bowels of Plutus's Treasury the Western Indies yet is it so much as our Historiographers both new and ancient have thought it worth the noting and all our Kings from time to time have made especial account of as well appeareth by a multitude of Leases thereof granted by them to many noble Personages extant in the Checquer Records and also by the process and argument of the Earl of Northumberland's Case concerning a Copper-mine 10. Eliz. which in Plowden's Commentaries is at large reported But be it little or great Many littles as our Adage saith make a great and continual accession amasseth at length to a mighty thing as is well seen in the Hill Testacchio in Rome which standing in a plain and being about half a mile in compass and exceeding in height any Tower in the Town-wall is said to have been made of the shards of the potts wherein the tribute-mony was brought to Rome or as pleaseth rather the more Learned sort of broken potts thrown out of the VII College of Potters built by Numa Pompilius But be it the one or other the semblance serves my turn and there 's an end THE PLACES or DWELLINGS OF THE ARCH-BISHOPS and BISHOPS of this Realm Now or of former times in which Houses their several Owners have Ordinary Jurisdiction and be as parcel of their Diocess as is recited in the Stat. of 33. Hen. VIII ca. 31. altho' they be situate within the precinct of another Bishop's Diocess 1. THe Lords Arch-bishops of CANTERBURY of long time enjoyed and do enjoy Lambeth-house as appeareth in Historia Cantuariensium Archiepiscoporum set forth as is thought by Dr. Ackworth in the Lord Arch-bishop Parker's time The which house was never severed from the Lord Arch-bishop's See of Canterbury since the annexion thereof to that See 2. The house at Lambeth-marsh commonly call'd Carlisle-house was the Bishop of ROCHESTER'S Palace until about 26. Hen. VIII as appeareth in the foresaid Historia Cantuariensis and also in the Act of Parliament of 22. Hen. VIII ca. 9. made against poysoning whereby it doth appear that the house of John Bishop of Rochester was at Lambeth-marsh But afterwards about An. 27. Hen. VIII or after the same being some ways the Kings was convey'd to Robert Aldridge Bishop of CARLILE and his Successors in exchange for his houses near Ivie-bridge now the Earl of Worcester and Salisbury's and other houses there toward the Street and of a yearly Rent of 16l. or thereabouts out of those houses given to the Bishop of Carlile and his Successors for those houses formerly call'd Carlile-place But the said Bishop Aldridge leas'd the house of Lambeth-marsh for some small and not valuable Rent for divers years yet enduring 3. The Bishop of ROCHESTER had given for his Palace to dwell in certain houses lately call'd Rochester-house near adjoining to Winchester-place and sometime as it is reported parcel of the possessions of the Priory of St. Swithins in Winchester but that place is lately divided into several little dwellings 4 WINCHESTER Place with the liberty of the Prison of the Clynke and Bancke belonged and doth belong to the Bishop of Winchester and the house was in Edw. the Sixth's time conveyed to the Marquess of
in Shoe-lane by a Lease from the Bishop of that See temp Edw. VI. yeilding some Rose or other small or not valuable Rent 19. The Bishop of LINCOLN'S Place was Southampton-house in Holborn convey'd temp Edw. VI. to the Lord Writoheseley then Lord Chancellor in fee for which the Bishop hath no other house in or near London as is thought 20. The Bishop of CHICHESTERS Place or Palace as Matthew Paris in his Chronicle calleth it reciting the story of the Lord Arch-bishop of Canterbury visiting St. Bartholomews did at that time lye in that house which was in Chancery-lane where Sir Richard Read sometime a Master of the Chancery and Mr. Atkinson the Counsellor at Law and others dwelt and dwell in and is said to be in Lease from the Bishop's Predecessors for divers years What the Rents reserv'd yearly be the Lease will shew the same 21. The Bishop of St. ASAPH never had Place at or near London that I can learn of neither in the valuation of the See where all his Possession and Jurisdictions be valu'd in the First-fruit-office is there mention of any such Place neither doth the now Bishop of that See know the same 22. The Bishop of the ISLE OF MAN call'd Sodorensis Episcopus altho' the same be an ancient Bishoprick yet was he never Lord of the Parliament of England having no Chapter or other Clergy but only an Archdeacon and all the Incumbents of the several Parishes of that Isle And before the said Statute of 33. Hen. VIII was neither a Suffragan of the Province of Were wont in former times to ride on Mares or Mules 119. Prohibited to take cognizance of Wills 129. Blackney Harbour 151. Blicking 151. The birth place of Q. Anna Bullen ibid. Bocland what 12. Not subject to Homage 35. Bond-men anciently not valu'd or rated 15. Reputed only as part of their Master's substance 11 15. Boors who 14. Bouthorpe 157. Bramsil 108 109. Brancaster 147 148. Breakspear Nich. converted Norway 139. Made Cardinal and Pope ibid. Breclys 161. Brennus a Britain invades Greece 3. His attendants ibid. Brictrick a Saxon Thane 22. Britains none of 'em remaining after Cadwallador's departure 100. Their Laws alter'd by the Romans 101. Bronholm 152. Brotherton Tho. Earl of Norfolk and Earl Marshal of England 167. When he dy'd 168. Buckenham 158. Burg-Castle 155. Burghesses of old not call'd to consult of State-matters 64 65. Burghbote and Brugbote 17 22 40. Burnham in Norfolk 149. Burnham-East in Com. Bucks 23. By what it signifies 3. 154. By-laws 3 154. C Cadwallader Prince of the Britains fled into Armorica 100. Calthorp 151. King Canutus how he publish'd his Laws 61. His Constitution touching Festivals 79. Capet Hugh usurpt the Kingdom of France 5 He grants his Nobility a perpetual enjoyment of their Feuds and Honours ibid. 14. Capitales plagii 52. Capitanei Regis regni 58. Caput feodi aut Capitaneus feodi 11. Carbrook 161. Carolus Calvus Emperour and King of France his Synodical Edict 54 55. Carolus Magnus or Charlemaigne divided his Territories between his three Sons 128. Castle-acre 141. Castle-rising in Norfolk the Parson has the Probate of Wills in that Town 130. Caston 151. Castor 155 156. Ceorls who 12. Of two sorts 14. The chiefest part of their profits redounded to their Lords ibid. Their service no bondage ibid. Their valuation and priviledges ibid. Not capable of a Knights Fee ibid. Champain in France 128. Chancery-Court 94. Charta de Foresta 109 114. Charter the first by whom made and where kept 8. Saxon Charters usually writ in that Language ibid. Charters of Thane-lands granted by several Kings 19 20. Chichley Henr. Arch-bishop of Canterbury canoniz'd St. George's day 93. The occasion of that Constitution ibid. Chindavintus King of the western Goths his Law concerning Wills 130. Cingulum quo sensu accipiendum 185. Cinque-Ports priviledges granted to them by King Edward the Confessour c. 26. Clacklose-Hundred 139. Clergy-men forbidden to use hunting 109 112 113. seq When they took upon them to prove Wills 129. Prohibited by Justinian to meddle with those matters ibid. Cley harbour 151. De Clifford Rob. Marshal of England 167. K. Canute's Charter of donation to the Thane Orc. 20. Coin of England in Q. Elisabeth's time 203 c. Colloquia 65. Comites who and why so call'd 3. Commendati 35. Congham 145. Conradus Salicus made a Constitution touching Feuds 4 5. Consecration a strange one of Eadmer a Monk of Canterbury 119. Consilium regni 60. Controversies among the ancient Britains by whom judg'd 74. Conveyance of lands how made by the Saxons 8. Cosshering what 60. Cossey 157. Counties in England 5. County-Courts how often kept 54. Were proclaim'd a sennight beforehand ib. Earl's County and Bishop's Diocess had but one limit 130 131. Ecclesiastical and Secular causes there decided 131. Court-Baron 4. It s Original 51. Court-Leet 51. Sometimes granted to the Lords of Mannours ibid. Court-Christian or Ecclesiastical when it sprung up 131 132. High Courts of Justice why they sit not in the Afternoons 89 90. Why they sit not all some days 90 91. Why they sit on the Rogation days ibid. Why on some Festivals and not on others 91 The Admiralty-Court why always open 94. Chancery-Court said to be always open ib. Cowshil 153. Creak 149. Cromer 152. Crostwick 153. Crowner's Office not before the Conquest 27. D Dane-blood 149. Dane-law 45. Danes not capable of devising lands by will 22 David I. King of Scotland and Earl of Huntingdon 11 131. Dean his Office and Functions 50. The priviledges of a Bishop's Dean ibid. Deerham West 140. Defensor Plebis 129. Degradatio Militis 185. Deira a Province 13. Demains or Demesne what 12. Ancient Demesnes had not any lands by Knight-service 44 57. D'Evreux Robert Earl of Essex Viscount Bourchier c. 171. Sent into Spain with an army ibid. Storm'd Cadiz ibid. Created Marshal of England ibid. Made Lord Deputy of Ireland ibid. When beheaded ibid. Dies juridici 72 73. Dies feriales 72. Dies pacis Ecclesiae ibid. 79. 82. Dies pacis Regis ibib 82. Dies novem Lectionum 91. Dies feriati repentini 93. Dower why judg'd to belong to the Ecclesiastical Court 132. Downham 140. Druides who 74. The sole Judges of controversies among the old Britains 74. Suppos'd to have us'd the Greek tongue 103 Had no knowledge of the Latin ibid. Dudley John Duke of Northumberland and Earl Marshal of England 170. E Eadmere a Monk of Canterbury made Arch-bishop of St. Andrews in Scotland 119. King Eadwigus's Charter of Thane-lands granted to Aelswine 19. Earl Marshals of England 169 170 171. Earl of a County see Alderman Earldoms not hereditary in ancient times 13. Earldoms in France ibid. 14. Earls among the Saxons 13 14. Earl no title of dignity anciently 13. Their Office depended on the King's pleasure ibid. An Earls Heriot 31. Easter-Term how limited anciently 83. Easter-week when exempted from Law business 76. Ebsam in
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.
For which purpose Conradus Salicus a French Emperour but of German descent going to Rome about fourty five years before the time of our King Edgar viz. sub An. Dom. 915. to fetch his Crown from Pope John X. made a Constitution upon the petition of his Souldiers That filii or aviatici the sons or if no Sons were living the Nephews or Grandsons as they call them of some of them should succeed in the Feud of their Father See the Constitution in the beginning of the fifth book of Feuds But Gerardus noteth that this law settled not the Feud upon the eldest Son or any other Son of the Feudatarie particularly but left it in the Lord's election to please himself with which of them he would After this Feuds were continued in divers places by several increments to the third fourth fifth sixth and seventh generation and sometime for want of lineal issue collaterally to the brother as Gerardus testifieth but whether by some positive law or by the munificence of the Lords he doth not tell us nor when or by whom they were made perpetual and hereditary tho' he confesseth that at last they grew to be extended in infinitum and then they began to be settled upon the eldest Son who formerly had no preheminence above a younger brother But while they stood sometimes produced in this manner by the indulgence of Princes to the third fourth or fifth generation c. some men of learning have concluded them to be hereditary as tho' there were no medium between a limitation how far so ever extended and infinitum To pass by that let us now go on in examination when and how Feuds became Hereditary Some suggest a shew of such a matter under the two Othones German Emperours who succeeded one the other about the year 973. But to rest upon the common and received opinion which we shall hereafter more at large declare the truth is that when Hugh Capet usurped the Kingdom of France againgst the Carolinges he to fortifie himself and to draw all the Nobility of France to support his Faction about the year 987. granted to them in the year 988. that whereas till then they enjoyed their Feuds and Honors but for life or at pleasure of their Princes they should from thenceforth for ever hold them to them and their heirs in Feudal manner by the Ceremony of Homage and oath of Fealty And that he would accordingly maintain them therein as they supported him and his heirs in the Crown of France which they joyfully accepted This was a fair direction for William of Normandy whom we call the Conquerour how to secure himself of this his new acquired Kingdom of England and he pretermitted not to take the advantage of it For with as great diligence as providence he presently transfer'd his Country-customs into England as the Black book of the Chequer witnesseth and amongst them as after shall be made perspicuous this new French custom of making Feuds hereditary not regarding the former use of our Saxon Ancestors who like all other Nations save the French continued till that time their Feuds and Tenures either arbitrary or in some definite limitation according to the ancient manner of the Germans receiv'd generally throughout Europe For by the multitude of their Colonies and transmigrations into all the chiefest parts thereof they carried with them such Feodal rights as were then in use amongst them and planting those rites and customs in those several Countries where they settled themselves did by that means make all those several Countries to hold a general conformitie in their Feuds and Military customs So by the Longobards they were carried into Italy by the Saliques into the Eastern parts of France by the Franks into the West part thereof by the Saxons into this our Britain by their neighbours the Western Goths who communicated with the Germans in manners laws and customs into Spain and by the Eastern Goths into Greece it self and the Eastern parts of Europe c. These I say carried with them into the parts of Europe where they settled such ancient Feudal customs as at the time of their transmigration were in use among them But the more prevalent and more generally receiv'd customs were those that were in use or taken up in the time of Conradus the Emperour and when Feuds became hereditary for on them especially is the Feudal Law grounded and composed tho' enlarg'd oftentimes by Constitutions of the Emperours and spread abroad into divers Nations by their example countenance or authority Wherein the Court of Milan was chiefly followed in rebus judicatis as appeareth by Duarenus and Merula but reserving unto every Nation their peculiar rights and customs For it was generally received into every Kingdom and then conceived to be the most absolute law for supporting the Royal estate preserving union confirming peace and suppressing robberies incendiaries and rebellions I conclude with Cujacius who upon the above-cited passages of Gerardus Niger saith Quam aliam Feudorum originem quaerimus His veluti incrementis paulatim feuda constituta sunt quae post Conradum usus recepit ut transirent ad liberos mares in infinitum c. The Military and Lay-Feuds being thus advanced from an arbitrary condition to become perpetual and hereditary did now in ordinary account leave their former name of Beneficia which were only temporary for years or life unto the Livings of the Clergy and retained to themselves the proper name of Feuds whereby they were produced to be perpetual and hereditary Cujacius therefore speaking of them both saith Feudum differt a beneficio quod hoc temporaneum fuit illud perpetuum And treating in another place of these beneficiarii and temporarii possessores he saith further Iisdem postea câ—pit concedi feudum in perpetuum quod est verum proprium Feudum Concluding in a third place that Propria Feudi natura haec est ut sit perpetua So that Cassineus in the Feuds of Burgundy saith that Omne Feudum quocunque modo acquisitum fit haereditarium cum successione sit redactum ad instar Allodialium That all Feuds by what means soever they be acquired are made hereditary in so much as by the continual succession of the children into the Feuds of their Fathers the Feuds are now brought to be like Allodial or patrimonial inheritances Thus Feudum which at first was but a tottering possession ad voluntatem Domini growing at length to be an irrevocable estate descending by many successions from son to son became at last to be an absolute inheritance and thereupon the words themselves Feudum and Haereditas in common use of speech Quem penes arbitrium est jus norma loquendi to be voces convertibiles and by a fair metonymia each to signifie other For as Horace further saith Verborum vetus interit aetas Et juvenum ritu florent modo nata vigentque Aptly