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A61094 Reliquiæ Spelmannianæ the posthumous works of Sir Henry Spelman, Kt., relating to the laws and antiquities of England : publish'd from the original manuscripts : with the life of the author. Spelman, Henry, Sir, 1564?-1641.; Gibson, Edmund, 1669-1748. 1698 (1698) Wing S4930; ESTC R22617 259,395 258

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heirs upon every gift grant and alienation tho' no word were spoken of them It appeareth by the Feodal-law from whence all that part of our Common-law that concerneth Tee and Tenures hath original and which our Common-law also affirmeth that there was always due ..... Those that thus receiv'd their Territories from the King were said to hold them in Capite for that the King is Caput Regni and were thereupon call'd Capitanei Regis and Capitanei Regni otherwise Barones Regis the King's men Tenants or Vassals who having all the land divided amongst them saving that which the King reserv'd to himself as Sacrum Patrimonium were also call'd Pares Regni and were always upon commandment about the person of the King to defend him and his Territories in war and to counsel and advise him in peace either Judicially in matters of Law brought before the King in his Palace which in those days was the only place of Royal justice or Politically in the great affairs of the Kingdom Hereupon they were not only call'd Praetorianum consilium as belonging to the King's Palace but Magnum concilium Regis and Magnum concilium Regni For that in those times it belonged only to them to consult with the King on State-matters and matters of the Kingdom insomuch as no other in the Kingdom possessed any thing but under them And therefore as in Despotical Government the agreement or disagreement of the Master of the Family concluded the menial and the whole Family so the agreement and disagreement of the chief Lord or him that held in Capite concluded all that depended on him or claimed under him in any matter touching his Fee or Tenure To this purpose seemeth that in the Laws of Edward the Confessor ratified by the Conqueror Debet etiam Rex omnia ritè facere in regno per judicium proc●rum regni These great Lords according to this Archetype of Government set them by the King divided their lands in like manner among their Tenants and followers First they assign'd a portion ad victum vestitum suum which they committed over to their Socmen and Husbandmen to furnish them with Corn Victuals and Provision for Hospitality and briefly all things necessary to their domestical and civil part of life The residue they divided into as many shares or portions as might well maintain so many Military men whom then they call'd their Knights and thereupon the shares themselves Knights-fees i. e. stipendia militaria And these Fees they granted over to each of their principal followers furnishing them with so many Knights for the wars These Grantees that receiv'd their Estates from the Barons or Capitanei and not from the King were called Valvasores a degree above Knights and were unto their Lords the Capitanei or Barones Regis as they the Capitanei were unto the King and did in like manner subdivide their lands among their Socmen and Military followers who in old time were call'd Valvasini whom I take to be the same at this day that are the Lords of every Mannour if not those themselves that we call Knights as owners of a Knights-Fee For in this the Feodal-law it self is doubtful and various as of a thing lost by Antiquity or made uncertain by the differing manners of several Nations Insomuch that Valvasores and Valvasini grew to be confounded and both of them at last to be out of use and no other Military Tenures to be known amongst us than tenere p●r Baroniam and tenere per feodum militare But in a Charter of Henr. I. it is said Si exurgat Placitum de divisione Terrarum si interest Barones meos Dominicos tractetur in Curia mea si inter Vavassores duorum Dominorum tractetur in Comitatu c. Where the Valvasores were also and the Barons themselves Suitors and Attendants Bracton mentioneth them in Henry III's time to be Viri magnae dignitatis Nor was their memory clean gone in Richard II's days as appeareth by Chaucer Yet do I not find in any of our ancient Laws or Monuments that they stood in any classick kind of Tenure other than that we may account the Baron Vavasor and Knight to be as our Lawyers at this day term them the Chief Lord Mesne and Tenant But herein the Feodal-law of our Country differ'd from that of Milan and other parts For there the Valvasini could invest which we call infeosse none under them in fee that is to hold of them by Knights-service And with us every Tenant Par aval might in infinitum till the Statute of Quia Emptores Terrarum enfeoffe another by Knight-service and to do all the services unto him that he did to his Mesne Lord. So that by this means a line of Knights-services might be created of a dozen yea twenty Mean-Lords and Tenants wherein every of them might have his prochine Tenant obliged unto him in the duties and services that his Lord Paramont which held of the King was to do and yeild unto the King himself for the same lands viz. Honour Ward Sustenance     Safety Marriage   give keep   Attendance Relief Counsel to Aid Defence of his Person Tribute Fidelity   Defence of his Patrimony         All which in ancient time while the Feodal-law flourished were well understood to be comprehended under the profession of Homage and the oath of Fidelity which every Feodal Tenant or as others call him Vassal usually did unto his Lord. Honour promis'd by the Tenant upon his knees in doing Homage which tho' it be the greatest and most submiss service that a Freeman can do unto his Lord yet the profession of it to the meanest subject is as ample and submiss yea in the very same words that to the King himself Attendance to follow and attend him in the war at his own charge and in peace with suite of Court Therefore Tacitus calleth them Comites Defence of his person for if he forsook his Lord being in danger it was forfeiture of life land and all he had Defence of his Signiory that nothing of his lands rents or services were withholden or withdrawn Profit by Ward Marriage and Relief as they fell Tribute by way of Aid to make his eldest son a Knight to marry his eldest daughter ransom himself being taken prisoner yea in some places to be an hostage for his Lord. Sustenance that being faln into poverty according to that in the Canon law spoken of a Patron Alatur egenus Counsel and Advice in which respect the Tenant was bound ordinarily once in every three weeks to come to his Lord's Court and there as a Judge with other of his Peers to censure the causes of his Signiory and to direct his Lord as the cause occurrent did require and always to keep his counsel This to the meanest Lord was in the nature of the King 's Great Court or Counsel call'd afterward a Parlyment Fidelity for
to all these was the Tenant by Knights-service ty'd by his oath of Fealty swearing to be feal and leal As the oath was at those times interpreted as well by Divines and Canonists as by Feodists and Lawyers And as these were inherent to this Tenure of Common right so was there many other grievous exactions impos'd by the Lords upon their Tenants some by custom of the Mannour some by Composition upon granting the Fee and many by Signioral Authority as tho' the Lord besides his Legal Power might do some things like the King by Prerogative By Custom when the Lord or Lady came into the Mannour the Bailiff was to present them 18 oras denar and every of their servants 10s. with some summs of mony as gratuities ut essent laeti animo That the Tenants should pay 32d. for every daughter they married It was an ordinary custom that Lords might take not only of their Tenants but of all the Country thereabout Victuals and all other necessaries for furnishing their Castles which how grievous it was may well enough be conceiv'd tho' the Statute that restrain'd it did not testifie it So other Lords took provision for their houshold and hospitality within their Mannours By Composition as to have their Tenants attend them with horse and man in their journies whom they call'd Road-knights To present them yearly at times Horses Hawks and other things of profit and pleasure By Signioral Authority as to lye and feast themselves and followers call'd Coshering at their Tenants houses and when any matter of extraordinary charge fell upon them then to extort the same amongst their Tenants which the Irish about fourty years since of my own knowledge still continu'd calling it Cuttings according to our old word Tallagium But among us it was taken away by the Magna Charta of King John I speak not of the innumerable Carriages Angaries and Vexations with which they otherwise harrowed if not plagued their Tenants Yet must I not let that pass which every where was then in use for Lords of Castles to imprison men at pleasure to hold and keep distresses there against common justice and to do many outrages all about them Wherein the Lords of Mannours imitating them would also imprison their Tenants and followers which Custom I saw also yet not laid down in Ireland fourty years since For a Meane-Lord would ordinarily say upon offence taken against a Churle c. Take him and put him in bolts But let Matthew Paris who liv'd long after many of these oppressions were abolish'd tell you the fashions of those times Every Lord having this authority over his Tenant the Superiour as comprehending them all and holding in Capite was tyed to the King to see all under his tenure to be of good Government good behaviour and forth-coming whensoever they should be demanded to answer any misdemeanour This appeareth by the Laws of Edward the Confessor where it is said Archiepiscopi Episcopi Comites Barones omnes qui habuerint Sacam Socam c. milites proprios servientes sc dapiferos pincernas c. sub suo friburgo habeant That is sub sua fide-jussione de se bene gerendo By reason whereof whatsoever those their Lords agreed or disagreed unto in matters of the State and Common-wealth it did bind every of them their inferiors Unto whom they themselves might then also appoint Laws and Ordinances in their own Courts And this is that which Tacitus affirmeth to have been the ancient manner of the Germans our Ancestors Agricolis suis jus dicere where under the word Agricolis he intendeth all them whom we call Tenants Hence then it comes to pass that in making Laws of the Kingdom the common people were not consulted with but only the Barons and those which held in Capite who then were call'd Consilium Regni And the common people being as I said by way of tenure under one or other of them did then by him that was their chief Lord as by their Tribune or Procurator and as now by the Knights of the Shire consent or dissent in Law-making and are not therefore nam'd in the title of any ancient Law Look Doomsday-book and there ye shall see the whole Kingdom divided only among the Barons and great Persons and the whole Commons of the Kingdom distributed and plac'd under some of them tho' not by name yet by number in their several qualities Let us then see how the practice of those ancient ages agreed with this Theoreme King Ina made his Laws by the advice of Kenred his father and as he saith himself Heddis Erkenwaldi Episcoporum meorum omnium Aldermannorum i. e. Procerum meorum seniorum sapientum Regni mei multa aggregatione servorum Dei which is of Church-men as I take it Alured briefly Consilio sapientum meorum Edward the Elder proposeth his Laws not as Senatus-consultum but as Edictum Principis viz. Ego Edouardus Rex iis omnibus qui Reipub. praesunt etiam atque etiam mando ut c. And after by the absolute words Praecipio Statuimus Volo Yet those wherein he and Guthrun the Dane joyned are call'd Senatus-consulta Ethelstane made his Ex prudenti Vlfhelmae Archiepiscopi aliorumque Episcoporum suorum consilio nec-non omnium Optimatum sapientum mandato suo congregatorum Edmund in a great Assembly Tam Ecclesiasticorum quàm Laicorum cui interfuerunt Oda Wulstanus Archiep. plurimique alii Episcopi Edgar In frequenti sapientum Senatu Ethelred In sapientum Concilio Canuius saith Sapientum adhibito Consilio per omnem Angliam observari praecipio As for Edward the Confessor his Laws come not to us as they were composed by himself but as the Paragraphs of them were collected by the Conqueror and augmented afterward In which collection there is no mention made of the manner of their Institution But reciting of a passage of St. Austens touching Tithes it is spoken as of former time that Haec concessa sunt à Rege Baronibus populo meaning the several kinds of Tithes there mention'd But whether these words extend to a concession of them by Parlament as we now call it or by a voluntary contribution of them yeilded unto by the King the Barons and the people according to the Canons of the Church I leave to others to determine To come to times of the Conquerour wherein Novus seclorum nascitur ordo and from whence as from a new period we must now take all our projections The great establishment of his own and of Edward the Confessor's Laws is said in the title to be that which Gulielmus Rex Anglorum cum Principibus suis constituit post conquisitionem Angliae Other Authors instead of Principibus have Barones And tho' all his Laws for the most part were ordain'd by his Charter in his own name only yet they seem to be made by the
Richard Tribunus Regis or Marshal to King Henry II. 166. Hundradors 51. Hundreds their original 50. Hundred Courts 51. Hunting forbidden to Clergy-men 109 112 113 114 115. Hydes what 17. When disus'd 4● I Ibreneys Rad. de 190. Iceni 135. Eorum nomina derivatio ibid. Icenia 135. Ejusdem termini ibid. Coelum solum 13● Ina King of the West Saxons adjusted the quantity of Rent for every Plough-land 15. By whose advice he made his Laws 61. Made a strict Law against working on Sundays 57. Ingolsthorp 146. Inland what 12. Intwood 157. K. John's Magna Charta 63. John Marshal to King Henry I. 165. Irregularity of Clergy-men wherein it consists 109 112. I se fluvius unde dictus 135. Ejusdem aestus 139. Islepe Sim Arch-bishop of Canterbury 90. Jury taken out of several Hundreds in a County 53. Jurours prohibited to have meat c. till agreed of their Verdict 89. Jus Gentium 2. Justices of Evre when instituted 27. Justinian the Emperor when he flourish'd 129. He prohibited Clergy-men to take cognizance of Wills ibid. Justitium what 72. K Keninghall 158. Kent the custom of Gavelkind in that County 43. Kettringham 15● The King the fountain of all Feuds and Tenures 1● The King to have his Tenants lands till the heir has done homage 3● The King universal Lord of his whole Territories 37. Anciently granted Churches to Lay-men 115 Knight what among the Saxons 51 58. Why there are but two Knights of the Shire for a County 64. Knight's-fees 3 4 51 58. When introduc'd 45. The number of them ibid. The value of a Knights-fee ibid. Knight-service 2 7. Kymberley 158. S Sacha Soca what in the Saxon tongue 51. Saliques bring the German feodal Rights into France 5. Sall in Norfolk 151. Sandringham 146. Sanhadrim when and where the Judges of it sate 75. Satrapies among the Saxons 50. Saxons the first planters of the German Rites in Great Britain 5. Their Charters translated 7. The manner of making their conveyances 8 Distinction of persons among them 11. How many degrees of Honour they had 16. How they held their lands 40. What oblig'd 'em to so many kinds of services ibid. Saxons very much given to drunkenness 89. When they took possession of England 100. They swept away the Roman Laws there 101 Yet took somewhat from them 102. Why their Laws were not at first put in writing ibid. When they had written Laws ibid. The use of wills unknown to the ancient Saxons 127. Our Saxons observ'd the Civil Law in their wills 128. Scutagium 36 37. Sedgeford 146. Segrave Nicholas Marshal of England 167. Seignory wherein it consists 2. Services how many sorts of 'em upon lands 17. Personal services 40. Praedial ibid. Alodial ibid. Beneficiary ibid. Colonical ibid. Servitia militaria what 46. The difference between them and Servitutes militares ibid Seymour Edward Duke of Somerset Nephew of King Edw. VI. 169. Made Lord Treasurer and Earl Marshal of England ibid. Shardlow Joh Justice of Oyer had a licence to hear causes on a Festival 95 96. Sharnburn 146. History of the Family 189 c. Shelton 156. Shouldham 142. Shyre gemot what 53. Signioral authority what 6● Snetsham 146 189 190 c. Socage 3 7 33 43. Socmen 1● 15 57. Sprowston 153. Stanchow 146 19● Star chamber Court 94 95. Stigand Arch-bishop of Canterbury depos'd 119. Stock-Chappel 146. Stow-Bardolfe 140. Strangbow Gilb Earl of Pembroke and Marshal of the King's Palace 165. Suiters of the Hundred 51. When and by whom call'd at this day ibid. Summons the manner of it in the Empire 36. Sunday how exempted from Law Suits 76. Sustenance what 59. Swasham 141. Swainmote-Courts 85. Syndici who 63 64. Synod of Eanham when held 78. T Talbot George Earl of Shrewsbury 171. Executed the Office of Lord High Steward of England ibid. Tallagium 60. Tasburg 156. Tassilo Duke of Bavaria did homage to King Pipin 34. Tenant lands of how many sorts 4. Tenants by Knight-service 4. Tenant in capite 10. Tenant in menalty ibid. Tenant Paraval ibid. Tenant's land or the Tenancy 12. Tenants what they were in ancient time 51. Tenants in Socage 57. Tenants forc'd to pay a fine upon the marriage of a Daughter 60. To furnish their Lords with provisions ibid. To present them with gratuities ibid. Tenure in capite 2. By Knight-service 4 7. The Original of Tenures 4. Tenure in Socage 4 7. Tenures for Life ibid. What tenures were in use among the Saxons 7. When first us'd ibid. No tenures in capite among the Saxons 10. Tenure in capite of two sorts ibid. The fruits of feodal tenures 24. The name of tenures not us'd by the Saxons 40. Terminus what it signifies 71. When the word became frequent ibid. Terms their definition and etymology 71. Several acceptations of the word 70. Full term and Puisne term ibid. The Original of Terms 73 77. Two Terms among the Welch 74. The Terms laid out according to the ancient Laws 82. The ancient bounds of Hilary-Term 82 83. Of Easter-Term 83. Of Trinity-Term 84 85. Of Michaelmass-Term 85 86. How Trinity Term was alter'd 87. Michaelmass-Term how abbreviated 88. Why the Terms are sometime extended into the Vacation 95. Terra Regis 57. Terrae testamentales 12. Terrington 138. Tertium denarium 14. Testaments and last wills not in use among the ancient Hebrews 127. Not found in Scripture before Christ's time ibid. Expresly mention'd by St. Paul ibid. Not us'd by the Saxons or Normans ibid. The custom of making wills from whom taken up ibid. How many witnesses to a will requir'd by the Civil Law 128. Thane or Theoden who 10 11. Their several kinds 16. Not properly a title of Dignity ibid. The Etymology of their name ibid. The quality of their Persons ibid. The nature of their Land 17. The word Thane has no relation to war 21. A Thane's Heriot 31. Thane-lands not subject to feodal service 18. Charters of Thane-lands granted by Saxon Kings 19 20. The occasion of granting them 21. Thane-lands alienated ibid. Devised by will 22. Granted to women ibid. No service upon 'em but what was express'd ibid. Dispos d of at the pleasure of the owner 23. Charged with a Rent ibid. Might be restrain'd from alienation ibid. Thane-lands and Reveland what 38. Thani majores minores 16. Thani Regis ibid. Theinge 50. His jurisdiction ibid. Theowes and Esnes who 11. Thetford 158. Thokus Dominus de Sharnburn 189. Thola the widow of Ore had a grant of certain lands of K. Edw. the Confessour 20. Obtain'd a Licence to devise her Lands and Goods 34. Thrimsa what 15. Thrithingreves or Leidgerev●s their Office and Authority 52. What causes were usually brought before ' em ibid. Tribunus militum rei militaris aut exercitus 165. Tribute 59. Trimarcesia what 3. Trinity-term its ancient bounds 84 85. How it was alter'd and shortned 87. Trinodis necessitas 17 43. Trithings or Lathes 50. Why so call'd 52. Turfs why so call'd 139 140. Tydd