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.
thought fit to omit it and I would not have the good Man depriv'd of such a publick testimony of his Modesty and love for Truth About the Year 1637. Sir William Dugdale acquainted our Author that many Learned Men were very desirous to see the Second Part publisht and requested of him to gratifie the world with the Work entire Upon that he show'd him the Second part as also the improvements that he had made upon the First but withall told him what great discouragements he had met with from the Booksellers So for that time the matter rested and upon the Author's death all the papers came into the hands of his eldest Son Sir John Spelman a Gentleman who had sufficient parts and abilities to compleat what his Father had begun if death had not prevented him After the Restoration of King Charles II. Arch-bishop Sheldon and the Lord Chancellor Hyde enquir'd of Sir William Dugdale what became of the Second part of the Glossary or whether it was ever finisht He told them that it was finisht by the Author and that the Copy was in the hands of Mr. Charles Spelman Grandson to Sir Henry They desir'd that it might by all means be printed and that he would prevail upon Mr. Spelman to do it for the Service of the Publick and the honour of his Grandfather Whereupon having got a good number of Subscriptions the management of that whole affair was referr'd to Sir William Dugdale as well to treat with the Booksellers as to prepare the Copy for the Press The share that Sir William Dugdale had in the publication of this Second Part has been made the ground of a suspicion that he inserted many things of his own that were not in Sir Henry Spelman's Copy and particularly some passages which tend to the enlargement of the Prerogative in opposition to the Liberties of the Subject The objection has been rais'd on occasion of a Controversie about the Antiquity of the Commons in Parliament the Authority of Sir Henry being urg'd to prove that there was no such thing as a House of Commons till the time of Henry III. It is agreed on all hands that this Learned Knight was a very competent Judge of that Controversie that as he had thoroughly study'd our Constitution so he always writ without partiality or prejudice that he was not engag'd in a party nor had any other design but to publish the truth fairly and honestly as he found it asserted by the best Historians Upon these grounds his Opinion in matters of this nature has ever been thought confiderable and his bare Judgement will always be valu'd when we can be sure that it is his own And there can be no doubt but his Assertions under the Title Parlamentum upon which the controversie is rais'd are his own and not an interpolation of Sir William Dugdale's For the very Copy from which it was Printed is in the Bodleian Library in Sir Henry Spelman's own hand and agrees exactly with the Printed Book particularly in the passages under dispute they are the same word for word So far then as this Copy goes for it ends at the word Riota it is a certain testimony that Sir William Dugdale did no more than mark it for the Printer and transcribe here and there a loose paper And tho' the rest of the Copy was lost before it came to the Oxford Library and so we have not the same authority for the Glossarie's being genuine after the Letter R yet it is not likely that Sir William had any more share in the seven last Letters of the Alphabet than he had in the others For all the parts of such a Work must be carry'd on at the same time and so to be sure the Author left equal materials for the whole The Gentleman also who is concern'd to prove the Second Part to be all genuine has urg'd Sir William Dugdale's own authority for it and that too while he was living Then I have seen a Letter from Sir William Dugdale to Mr. Spelman giving him an account of the great losses he had sustain'd by the Fire of London and the pains he had taken in the publication of the Councils and Glossary As to the former he expresly lays claim to the better half of it as his own Work and Collection adding that if the Impression had not perisht in all right and reason he ought to have had consideration for the same as also so he goes on for my pains in fitting the Copy of the Glossary for the Printer by marking it for the difference of Letter and introducing and transcribing those loose papers left by your Grandfather without fit directions where they should come in This is all that he pretends to in the Glossary and if he had any further share in it t is likely he would have insisted upon it on this occasion to convince Mr. Spelman the more effectually of the good services he had done him in that business I have been the more particular in this matter because if it should appear in the main that Sir William had taken the liberty of adding or altering every single passage after would be lyable to suspicion and the authority of the whole very much weaken'd For tho' that worthy Person was extremely well vers'd in our English affairs yet it must be own'd that Sir Henry Spelman was a better judge of our ancient Customs and Constitutions and consequently whatever he delivers as his opinion ought to be allow'd a proportionable authority Had he put his last hand to this Second Part the Glossary as it is now printed together would have made a much nobler Work But the latter part in comparison of the other is jejune and scanty and every one must see that it is little more than a collection of Materials out of which he intended to compose such Discourses as he has all along given us in the First Part under the words that are most remarkable It was my good fortune among others of his papers to meet with two of these Dissertations De Marescallis Angliae and De Milite which are publisht among these Remains for the present and will be of use hereafter in a new Edition of the Glossary as properly belonging to it and originally design'd for it by the Author Tho' it is not likely that he should lay aside his Glossary for the sake of the Councils yet it is certain that he enter'd upon this latter Work before the Glossary was finisht He was particularly encourag'd in it by Dr. George Abbot and Dr. William Laud successively Arch-bishops of Canterbury and above all by the most Learned Primate of Armagh Archbishop Usher And in his Preface he tells us that he was much confirm'd in his design by what he had heard from Dr. Wren first Bishop of Norwich and afterwards of Ely He told him how Dr. Andrews the then late Bishop of Winchester had been reflecting with great concern upon 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
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
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
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
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
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
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
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
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
now to our greater enrichment return'd again amongst us by dissolution of these Popish Ceremonies Viand You may also reckon the mony given to maintenance of Priests Monkery Lights Obits Anniversaries and all the plate and treasure of the Clergy at that time to be of the same sort Selv. That did Edward the first well consider and therefore to the end that he might dig it out of the grave and bring it abroad again among the people that had need thereof he suffer'd the matter to be so handl'd by one of his Treasurers that certain Captains appointed to work the feat placing their Souldiers in every quarter through the Realm made search at one time in July at three of the clock in the afternoon for all such mony were it hid or laid up in hallowed places and taking the same away brought it unto the King who dissembling the matter as he that stood in need excused the act done by his Treasurer and thought it no offence but rather a good work Besides all this there is yet another means whereby the Treasure of our Land must needs be much encreased and that is by divers good Laws and Statutes made both for causing it to be brought into the Realm and also for containing it within the lists of the same when it is come And that is by the Stat. 14. Edw. III. whereby it was enacted that every man denizen or stranger that should transport any wooll out of the Land should find sufficient sureties to bring again unto the King's Exchange for every sack of wooll transported plates of Silver to the value of two marks And by the Statute of 3. Henry V. confirm'd and quickned by 32. Hen. VI. which provided that every Merchant-stranger buying wooll in England not coming to the Staple to be sold shall bring to the Master of the Mint of the Tower of London of every sack one ounce of Bullion of Gold and in the same manner of three pieces of Tin one ounce of Bullion of Gold or the value in Bullion of Silver upon pain of forfeiture of the same Woolls and Tin or the value thereof to the King It is provided also for containing of mony within the Land that all Merchant-strangers shall employ all the mony receiv'd by them within this Realm upon the Merchandise and Commodities of this Realm deducting their reasonable expences and that they shall give sufficient surety for doing hereof and the trespasser to forfeit and be punished grievously as in the Statutes is contain'd 3. Hen. VII affirming and enlarging 14. Edw. IV. and many other of like effect And by 4. Hen. VII that no man dwelling in England shall pay or deliver wittingly to any Merchant or other born out of the King's obedience for any Merchandise or Wares or in any other wise any Gold coined Plate Vessels Bullion Jewels of Gold or Silver upon pain of forfeiture thereof And by 14. Edw. IV. affirm'd by 4. Hen. VII and for a time continued by 1. and 3. Henry VIII with a mitigation of the bloody penalty all men except such as had the King's Licence or were dispensed with by those Statutes were utterly inhibited from carrying out of the Realm any manner of Coin plate vessel massy Bullion jewels of Gold or Silver Which Law and many other of the like effect tho' they continue not now in force yet the fruit thereof remaineth to us still as Children enrich'd by their Fathers sparings Besides it is not altogether to be passed in silence that our treasure is somewhat increased by the Gold and Silver try'd out of our own Mines here in England Which tho' it be little or nothing in respect that in this latter age we have wimbl'd even into the bowels of Plutus's Treasury the Western Indies yet is it so much as our Historiographers both new and ancient have thought it worth the noting and all our Kings from time to time have made especial account of as well appeareth by a multitude of Leases thereof granted by them to many noble Personages extant in the Checquer Records and also by the process and argument of the Earl of Northumberland's Case concerning a Copper-mine 10. Eliz. which in Plowden's Commentaries is at large reported But be it little or great Many littles as our Adage saith make a great and continual accession amasseth at length to a mighty thing as is well seen in the Hill Testacchio in Rome which standing in a plain and being about half a mile in compass and exceeding in height any Tower in the Town-wall is said to have been made of the shards of the potts wherein the tribute-mony was brought to Rome or as pleaseth rather the more Learned sort of broken potts thrown out of the VII College of Potters built by Numa Pompilius But be it the one or other the semblance serves my turn and there 's an end THE PLACES or DWELLINGS OF THE ARCH-BISHOPS and BISHOPS of this Realm Now or of former times in which Houses their several Owners have Ordinary Jurisdiction and be as parcel of their Diocess as is recited in the Stat. of 33. Hen. VIII ca. 31. altho' they be situate within the precinct of another Bishop's Diocess 1. THe Lords Arch-bishops of CANTERBURY of long time enjoyed and do enjoy Lambeth-house as appeareth in Historia Cantuariensium Archiepiscoporum set forth as is thought by Dr. Ackworth in the Lord Arch-bishop Parker's time The which house was never severed from the Lord Arch-bishop's See of Canterbury since the annexion thereof to that See 2. The house at Lambeth-marsh commonly call'd Carlisle-house was the Bishop of ROCHESTER'S Palace until about 26. Hen. VIII as appeareth in the foresaid Historia Cantuariensis and also in the Act of Parliament of 22. Hen. VIII ca. 9. made against poysoning whereby it doth appear that the house of John Bishop of Rochester was at Lambeth-marsh But afterwards about An. 27. Hen. VIII or after the same being some ways the Kings was convey'd to Robert Aldridge Bishop of CARLILE and his Successors in exchange for his houses near Ivie-bridge now the Earl of Worcester and Salisbury's and other houses there toward the Street and of a yearly Rent of 16l. or thereabouts out of those houses given to the Bishop of Carlile and his Successors for those houses formerly call'd Carlile-place But the said Bishop Aldridge leas'd the house of Lambeth-marsh for some small and not valuable Rent for divers years yet enduring 3. The Bishop of ROCHESTER had given for his Palace to dwell in certain houses lately call'd Rochester-house near adjoining to Winchester-place and sometime as it is reported parcel of the possessions of the Priory of St. Swithins in Winchester but that place is lately divided into several little dwellings 4 WINCHESTER Place with the liberty of the Prison of the Clynke and Bancke belonged and doth belong to the Bishop of Winchester and the house was in Edw. the Sixth's time conveyed to the Marquess of
Northampton who builded the gallery there but in Queen Mary's time the same was restored to that See where it so continueth 5. The Lord Arch-bishop of YORK'S house was the White-hall much enlarg'd and reedify'd by the Cardinal Wolsey then Arch-bishop of York as by the Arms remaining in wood stone and glass in sundry places of that house may appear And after the said Cardinals conviction of Premunire and Death the same was made parcel of the King's Palace at Westminster by purchase from the Arch-bishop of York as appeareth by the Stat. of 28. Hen. VIII ca. 12. But afterwards until anno 2. or 3. of Queen Mary the Arch-bishop of York had no other dwelling-place near London in right of his See or by reason of his Arch-bishoprick but the house at Battersey and then Queen Mary gave to Arch-bishop Heath and his Successors the late Duke of Suffolk's house called Suffolk-place in Southwark which the Arch-bishop of York by confirmation of the Dean and Chapter there shortly after sold away to others and purchased to his See York-place where the Lord Chancellor remaineth together with the houses adjoining to the Street Which house was sometime the Bishop of Norwich's Place and the same among all or the greatest part of the possessions of the See of Norwich about an 27. Hen. VIII were convey'd to the King by a private Act of Parliament in recompence of the union of the Monastery of St. Bennets and the possessions thereof to that Bishoprick being of far better value than the ancient Lands of the Bishoprick of Norwich assur'd to the King as is recited in the Statute of 32. Hen. VIII ca. 47. whereby the Bishop of Norwich is made Collector of the Tenths of his Diocess as other Bishops were being formerly free'd thereof by the said private Statute of 27. Hen. VIII Which said now York-place by Hen. VIII was convey'd in fee to Charles Brandon Duke of Suffolk and after the death of the said Duke's sons the coheirs of the Duke's sons sold the same to the said Arch-bishop Heath and his Successors 6. But the Bishop of NORWICH was limited by the said private Act of 27. Henry VIII to enjoy perpetually in succession a Prebend in the Free-Chappel of St. Stephens at Westminster after dissolv'd by the Statute of Dissolution of Colledges and Free-Chappels 1. Ed. VI. and the house thereto belonging in Chanon-row whereof then was incumbent one Knight but the house is said to be Leas'd for some small Rent by the Bishop of Norwich to Sir John Thinn Knight in Edw. the Sixth's time for many years enduring And that the house now call'd York-place was belonging to the Bishop of Norwich is proved by a Case 21. Edw. IV. fol. 73. in a Presentment against the Bishop of Norwich in the King's Bench for annoyance of a way inter hospitium Episcopi Norwicensis Dunelmensis in parochia Sancti Martini in Campis 7. DURHAM-HOUSE as appeareth in that Case was the Bishop of Durham's house and Bishop Tonstal about the 26 th of Hen. VIII convey'd the same to the King in Fee and King Henry VIII in recompence thereof granted to the See of Durham Coldharborrowe and certain other houses in London And after Edw. VI. about an 2. granted Durham-house to the Lady Elizabeth his Sister for life or until she be otherwise advanced After the Bishoprick of Durham by a private Statute not printed of 7. Edw. VI. was dissolved and all the possessions thereof given to King Edw. VI. who shortly after convey'd in Fee the said Bishop's late house at Coldharborrowe and other houses in London to Francis Earl of Shrewsbury and his heirs And after the 2d. Mariae ca. 3. The Stat. of 7. Edw. VI. for dissolving that Bishoprick is repeal'd but the Mansion-house of Coldharborrowe and other Tenements in London so granted to the said Earl be confirm'd And the Bishop by that Act prayeth a recompence from the Queen at his charge Whereupon Queen Mary about anno V. or VI. of her reign granteth to the said Bishop of Durham her reversion of Durham-place in succession which coming into possession by the death of Queen Elizabeth the late Bishop of Durham now Lord Arch-bishop of York enter'd into and enjoy'd the same in the right of his See by opinion of the chief Justices of the Land referr'd by the King being opposed by Sir Walter Rawleigh as likewise doth the now Bishop of Durham 8. The Bishop of LICHFEILD and COVENTRY of old call'd the Bishop of Chester before the new erection of the new Bishoprick of Chester had his Place where Somerset-house is builded 9. 10. As likewise the Bishops of WORCESTER and LANDAFF had there sometime a house as Stow in his Book of Survey of London saith But the said three Bishops Places together with a Parish Church call'd Straunde-Church and the greatest Inn of Chancery call'd Straunde-Inn belonging to the Middle Temple were defaced without recompence to any of the said three last mentioned Bishops Parish Church or Inn of Chancery Other than to the Bishop of WORCESTER who had in respect of his former house a house in the White Fryers which he enjoyeth 11. Arondell-house now the Lord Admiral 's was the Bishop of BATH and WELLS'S and was assured in Edw. VI. time to Admiral Seymer and is now quite sever'd from that Bishoprick without recompence 12. Likewise the Bishop of EXETER'S Place after call'd Paget Leicester and Essex-house of the several Owners of the same And it is thought the Bishop of Exeter hath likewise no recompence for the same of any other house in or near London 13. The Bishop of SARUM'S Place now call'd Dorset-house before call'd Sackvile-house and of former time Salisbury Court being in long Lease made by Bishop Capon who was Bishop there in Hen. VIII Edw. VI. and Queen Mary's time was exchang'd temp Reginae Elizabethae by the great Learned Reverend Father Bishop Jewel for recompence of good value in Lands in his Diocess or elsewhere in the West Country 14. The Bishop of St. DAVID'S Place was near adjoyning to Bridewell upon the ditch that runneth to Fleet-bridge into the Thames and was granted in Fee-farm for a Mark Rent temp Edw. VI. to Dr. Hewick the Physician under which purchase the same is now enjoy'd 15. The Bishop of HEREFORD'S Place as Stow in his Survey of London pag. 357. saith is in the Parish of St. Mary de Monte alto or Mount-halt in London of which Bishops Patronage the said Church also is which Place is in the tenure of the Bishop of Hereford or his Tenants 16. 17. The Bishop of LONDON'S Place at Pauls was never sever'd from the Bishop's possession And likewise ELY Place from the Bishop of that See other than such part thereof as the late Lord Chancellor Hatton had by Lease for many years from the late Bishop Cox 18. The Bishop of BANGOR'S house is or lately was Mr. Aleworth's house
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
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