viz. Towns or Mannours to the Lords thereof whom the Saxons called Theings after Barons Hundreds to the Lords of the Hundreds Trithings or Lathes to their Trithingreves Counties to their Earls or Aldermen and the larger Satrapies to their Dukes or chief Princes All which had subordinate Authority one under the other and did within the precinct of their own Territories minister justice unto their Subjects For the Theinge or Lord of the Town whom the Normans called a Baron had of old Jurisdiction over them of his own Town being as it were his Colony and as Cornelius Tacitus saith did Agricolis suis jus dicere For those whom we now call Tenants were in those ancient times but Husbandmen dwelling upon the soil of the Lord and manuring the same on such conditions as the Lord assigned or else such as were their followers in the wars and had therefore portions of ground appointed unto them in respect of that service which portion was thereupon called a Knights-fee for that a servant in the war whom the Saxons called a Knight had it allotted unto him as the fee or wages of his service Neither at the first had they these their fees but at the Lord's pleasure or for a time limited and therefore both these kinds of Military and Husbandmen dwelling upon the Town or Colony of the Lord were as in reason they ought under the censure and will of their Lord touching the lands they ocucpy'd who therefore set them laws and customs how and in what manner they should possess these their lands and as any controversy rose about them the Lord assembling the rest of his followers did by their opinion and assistance judge it Out of which usage the Court-Barons took their beginning and the Lords of Towns and Mannours gain'd the priviledge of holding plea and jurisdiction within those their Territories over their Tenants and followers who thereupon are at this day called Sectatores in French Suitres of suivre to follow But the Saxons themselves called this jurisdiction sacha and soca signifying thereby Causarum actionem and libertatem judicandi for sacha signifieth causa in which sense we yet use it as when we say For God's sake and soca signifieth liberty or priviledge as Cyriâ—socne libertas Ecclesiae But by this manner the Lords of Towns as ex conâ—â—etudine Regni came to have jurisdiction over their Tenants and followers and to hold plea of all things touching land But as touching cognizance in criminal matters they had not otherwise to meddle therewith than by the King's Charters For as touching the King's peace every Hundred was divided into many Freeborgs or Tithings consisting of ten men which stood all bound one for the other and did amongst themselves punish small matters in their Court for that purpose called the Lete which was sometime granted over to the Lords of Mannours and sometime exercised by peculiar officers But the greater things were also carryed from thence into the Hundred Courts so that both the streams of Civil justice and of Criminal did there meet and were decided by the Hundreds c as by superiour Judges both to the Court Baron and Court Leet also Edward the Confessor Ll. ca. 32. saith that there were Justices over every ten Freeborgs called Deans or Tienheofod that is head of ten which among their Neighbours in Towns compounded matters of trespasses done in pastures Meadows Corn and other strifes rising among them But the greater matters saith he were referred to superiour Justices appointed over every ten of them whom we may call Centurions Centenaries or Hundradors because they judged over an hundred Freeborgs The Lord of the Hundred therefore had jurisdiction over all the Towns of the Hundred as well in Criminal matters as in Civil and they that failed of their right in the Court Barons Tithings or Leets might now prosecute it here before the Lord of the Hundred and his followers called the Suitors of the Hundred which were the Lords and owners of lands within that Hundred who were tyed to be there at every Court which as appeareth by the Laws of H. I. ca. 8. was to be holden twelve times in the year that is once every month But especially a full appearance was required twice in the year in memory whereof the Suitors are at this day called at our Lady and Michaelmass Courts by the Steward of the Hundred These as I said before held piea of trespasses done in Pastures Meadows Corn and such like and of other strifes arising between Neighbour and Neighbour and as by and by also shall be shewed of Criminal matters touching the very life of a man Decrevit tum porro Aluredus c. King Alured then further decreed that every Free-man should be settled in some Hundred and appointed to some Freeborg or Tithing as did also Canutus Ll. par 2. cap. 19. and that the heads of these Tithings or Freeborg whom we now call Capitales plegii should judge the smaller matters as in Leets c. but should reserve the greater for the Hundred Court and those of most difficulty to the Alderman and Sheriff in the County Court Lamb. voc Centuria The order of which proceedings in the Hundred Court do there also appear out of the Laws of King Ethelred made in a great Assembly at Vanatinge Cap. 4. In singulis Centuriis Comitia sunto c. Let the Courts be holden in every Hundred and let twelve men of the elder sort together with the Reve of the Hundred holding their hands upon some holy thing take their oath that they shall neither condemn any man that is innocent nor quit him that is guilty And it seemeth by the Laws of Canutus par 2. cap. 16. 18. That a man was not to be delayed above three Court days from having his right for if he were he might then resort to the County and if he obtained it not there within four Courts then he might seek unto the King And no doubt but this Law opened a great gap for the carrying of matters from the Hundred and County Courts up to the King 's Court. The Jurisdiction also of this Court seemeth to be further abated by H. I. who tho' he establish'd the ancient manner of holding it yet pulled he from it some principal parts thereof as after shall appear in a Writ of his touching this and the County Court directed to the Sheriff of Worcester MS. Co. pa. inter 48. 49. The Thrithingreve or Leidgreve whom I take to be the same called in the Salic Laws Tungimus but doubt whether he or no that in our Laws of H. I. is called Thungrevius was an officer that had authority over the third part of the County or three or more Hundreds or Wapentakes whose Territory was thereupon called a Thrithing otherwise a Leid or Lath in which manner the County of Kent is yet divided and the Rapes in Sussex seem to answer the same And perhaps the Ridings also of Yorkshire
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
Reliquiae Spelmannianae THE POSTHUMOUS WORKS OF Sir HENRY SPELMAN Kt. Relating to the LAWS and ANTIQUITIES OF ENGLAND Publish'd from the ORIGINAL MANUSCRIPTS With the LIFE of the AUTHOR Sine dubio domus Jurisconsulti est totius oraculum Civitatis Cicero OXFORD Printed at the THEATER for Awnsham and John Churchill at the Black-Swan in Pater-Noster-Row LONDON 1698. Imprimatur JOH MEARE VICE-CAN OXON Jan. 17. 1698. TO THE Most Reverend Father in God THOMAS LORD ARCH-BISHOP OF CANTERBURY PRIMATE of All ENGLAND And METROPOLITAN And one of his Majesty's most Honourable Privy Council MY LORD I BEG leave to lay before your Grace these Posthumous Discourses of Sir Henry Spelman promising them a favourable reception both for their own worth and for the sake of their Author He was a Person endow'd with those excellent Qualities which never fail to recommend others to your Grace's good opinion and esteem A Gentleman of great Learning and a hearty Promoter and Encourager of it In his Temper Calm and Sedate and in his Writings Grave and Inoffensive a true lover of the Establisht Church and a zealous maintainer of her Rights and Privileges In which respect the Clergy of this Nation were more particularly engag'd to Him because being a Lay-man and so not lyable to the suspicion of Prejudice or Interest his Reasonings carry'd in them a greater weight and authority than if they had come from one of their own Order I might add as some sort of excuse for this Trouble that He had the honour to be particularly respected by two of your Grace's Predecessors and some of his Posthumous Works by a third Arch-bishop Abbot and his immediate Successor were the chief Encouragers of the First Volume of his Councils and after his death the Second Part of his Glossary was publisht by the procurement of Arch-bishop Sheldon So that these Papers have a kind of hereditary right to your Grace's Protection All the share that I have in this Work is the handing it into the World and to make the first Present to your Grace would be no more than a decent regard to the Eminence of your Station though I had no particular obligation to do it But in my Circumstances I should think my self very ungrateful if enjoying so much Happiness under your Grace's Patronage I should omit any opportunity of expressing my Thankfulness for it Especially since such small Acknowledgements as this are the only Returns that I can ever hope to make for the Encouragement which You daily afford to Your GRACE'S most obliged and most dutiful Servant EDMUND GIBSON THE PREFACE I Shall not make any Apologie for the publication of these Treatises They seem'd to me to be very useful towards a right understanding of the Laws and Antiquities of England and I hope they will appear so to others too Nor need I endeavour to recommend them to the world any otherwise than by shewing them to be the genuine Labours of Sir H. Spelman whose Learning Accuracy and Integrity are sufficiently known The first of them concerning Feuds and Tenures in England was written in the Year 1639. and is printed from a fair Copy in the Bodleian Library corrected with Sir Henry Spelman's own hand The Occasion of writing it was the Great Case of Defective Titles in Ireland as may be gathered in some measure from the hints that our Author has given us but is much more evident from the Case it self printed afterwards by order of Thomas Viscount Wentworth the then Lord Deputie The Grounds thereof with the Pleadings and Resolutions so far as they concern the Original of Tenures were in short thus The several Mannours and Estates within the Counties of Roscomon Sligo Mayo and Gallway in the Kingdom of Ireland being unsettl d as to their Titles King James I. by Commission under the Great Seal dated the 2d day of March in the 4th Year of his Reign did authorize certain Commissioners by Letters Patents to make Grants of the said Lands and Mannours to the respective Owners Whereupon several Letters Patents to that effect passed under his Majesties Great Seal by virtue of the said Commission for the strengthening of Titles that might otherwise seem defective And afterwards in the Reign of King Charles I. upon an Enquirie into his Majestie 's Title to the Countie of Mayo there was an Act of State publisht commanding all those who held any Lands in that County by Letters Patents from the Crown to produce them or the Enrollment thereof before the Lord Deputie and Council by a certain day To the end that they might be secur'd in the quiet possession of their Estates in case the said Letters were allow'd by that Board to be good and effectual in Law In pursuance of this Order several Letters Patents were produc'd and particularly the Lord Viscount Dillon's which last upon the perusal and consideration thereof by his Majestie 's Council were thought to be void in Law And therefore it was order'd by the Lord Deputie and Council that the doubt arising upon the Letters Patents should be drawn up into a Case and that Case to be openly argu'd at the Council-Board The Case was drawn up in these words King James by Commission under the Great Seal dated the second day of March in the fourth year of his Reign did authorize certain Commissioners to grant the Mannour of Dale by Letters Patents under the Great Seal of this Kingdom to A. and his heirs and there is no direction given in the said Commission touching the Tenure to be reserv'd There are Letters Patents by colour of the said Commission pass'd unto A. and his heirs to hold by Knights Service as of his Majesties Castle of Dublin Here it was agreed on all hands that the Letters Patents were void as to the Tenure and that the Commissioners had acted beyond their Commission in reserving a mean Tenure to the prejudice of the King when they ought either to have reserv'd an express Tenure by Knight's Service in Capite or have mention'd no Tenure at all but have left the Law to imply a Tenure in Capite The question therefore was Whether the deficiency of the Tenure did so far affect the Grant as wholly to destroy the Letters Patents Or Whether the Letters Patents might not be good as to the Land and void only as to the Tenure The Case was argu'd several days by Counsel on both sides and was afterwards deliver'd up to the Judges who were requir'd by the Lord Deputie and Council to consider of it and to return their Resolution But upon private Conference not agreeing in their Opinions it was thought necessary for publick satisfaction to have it argu'd solemnly by them all which was accordingly done And when it came to be debated whether the reservation of a Tenure so different from that intended and warranted by the Commission could make void the whole Grant this happen'd to lead them to a more general Enquirie What the reservation of a Tenure is
of Peace between their Neighbours Congratulations Embassages and such like Viand But what moves you to let slip King John Edward II. Richard II. Henry VI. and Richard III. Selv. Not for that they were free from foreign Expences which is not possible for it oppressed them all but for that most of them omitted such necessary charge as in policy they ought to have undergone both for strengthening themselves with Friends and weakning their suspected Enemies such as when occasion serv'd were like to do them damage For if Edw. III. had not by this means fortify'd himself with the alliance and friendship of the noble Knight Sir John of Henault the Dukes of Brabant and Gelderland the Arch-bishop of Colein the Marquess Gulâ—ck Sir Arnold de Baquetien the Lord Walkenbargh and others and also greatly impaiâ—'d the power of the French King by winning the Flemings from the obedience of the Earl of Flanders his assured friend and by procuring the stay of much of the aid by him expected out of the Empire Scotland and other places he had not only fail'd in his French attempts but also put his Kingdom of England in hazard by the Scots who were sure of all the help and backing that France could any way afford them So had it not been for the aid and friendship of the French King the Earls of Bullogne St. Paul the Gascoines and other foreigners Henry III. had been bereav'd of his Kingdom by his own Subjects which notwithstanding he held with great difficulty So the rest likewise But on the contrary part the others whom you nam'd neglecting this right precious tho' costly ground work not only wanted it when need required but with the ruine of their People State and Kingdom lost their Crown and dearest lives by the infernal hands of cursed Murtherers their rebellious Subjects getting once the better hand Viand But Edw. II. used means also to have procured the amity and assistance of divers foreigners as the Duke of Britain the Lord Biskey the Lady Biskey Governess of the King of Castile and Leon James King of Arragon and others And Rich. II. sought the like of the hands of the French King and so the rest likewise of others Selv. True not examining the dependencies of time present they imagined in their prosperity that things to come would ever have good success and therefore deferr'd still the doing of it till extream necessity compell'd them to it and then their Estates being utterly desperate and ruinated no man willingly would lend them aid or ear Knowing that when the fury of the disease hath once possessed the vital places it is then too late to apply Physick This reason made the Princes you speak of to refuse King Edward II. And as for Richard II. when the French King saw how he was entangled and overladen with dangerous Rebellions and Divisions of his Nobles and Commons at home war in Scotland Flanders Spain Portugal Ireland sending forces against the Infidels releiving the expell'd King of Armenia and many other such turbulent affairs he then thought and truly that there was more to be gotten by being his Enemy than his Friend and taking advantage of that opportunity defied him also and warr'd upon him So that King Richard wholly void of aid and hope fell into the hands of his proud Barons and lost both Crown and Life In like miserable sort stood the case with Henry VI. For being once descended to the lowest exigent who almost durst releive him or any of the rest for fear as our Proverb saith of pulling an old house upon his own head Whereas if in their flourishing estate they had employ'd their treasure to encounter future perils being yet afar off they had no doubt securely held their Crowns and perhaps without much business illuded all the practices of their Enemies drawing nearer Had Richard II. at the time when being in France he bestow'd the value of 10000l. in gifts upon the fickle French King stay'd there and employ'd the other 300000. and odd marks by him also wasted at that bravery in gaining the amity of his neighbour Princes to serve his turn when need should be it is not unlikely but afterwards it might have sav'd all the rest For it is a good rule that is taught us in the art of Fencing to break the blow or thrust that might endanger us as far from our Bodies as we can For as I said before when things be drawn to the last period the time of help is past according to the saying of Hecuba to her betray'd husband being about to arm himself Quae mens tam dira miserrime conjux Impulit his cingi telis aut quo ruis inquit Non tali auxilio nec defensoribus istis Tempus eget non si ipse meus nunc afforet Hector Most Royal therefore are the Providence and Expences of her Excellent Majesty who as it were with Linceus eyes looking into the lowest secrets of the practices of her Enemies hath not only for these 36. years utterly cancell'd and made them frustrate but foreseeing also what mighty consequences may depend on mean beginnings omitteth no diligence to defeat them whilst they are yet in the shell or so to environ the mark whereat they are levell'd as being hatch'd they shall be able to perform nothing Knowing it to be far greater wisdom to preserve the body whilst it is sound from all infirmities than by admitting a dangerous disease to gain the credit of an excellent cure And tho' mony be the Blood wherein the Life of all Common-wealths as in a nest is cherisht yet nature teacheth that to preserve health and cure an impostumate disease we ought to let blood out and that sometimes in great abundance And as Themistocles said Pecunia nervus belli mony is also the sinews of war and look how necessary Peace is in a Common-wealth so necessary is War to beget Peace for Peace is Belli filia the daughter of war But to return to our matter lest we fare like the unskilful hounds that undertake a fresh hare when they have hunted the first till she be almost spent It appeareth by that that hath been said that a main Port by which our treasure hath been vented from us heretofore is now shut God be thank'd and that instead thereof no new is opened So that thereby our store must needs remain better by us than it hath and we by consequence must be the richer It is also to be added that whereas in former times much of the treasure that came into the land was buried up in superstitious employments as about Images Shrines Tabernacles Copes Vestiments Altar-cloaths Crucifixes Candlesticks c. by means whereof the Common-wealth became no whit richer than if that part so employed had never come within the Land Now we do not only retain that Idolatrous charge still in our purses which makes us much the wealthier but the rest also which for many hundred years together was so employ'd is
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
Richard Tribunus Regis or Marshal to King Henry II. 166. Hundradors 51. Hundreds their original 50. Hundred Courts 51. Hunting forbidden to Clergy-men 109 112 113 114 115. Hydes what 17. When disus'd 4â— I Ibreneys Rad. de 190. Iceni 135. Eorum nomina derivatio ibid. Icenia 135. Ejusdem termini ibid. Coelum solum 13â— Ina King of the West Saxons adjusted the quantity of Rent for every Plough-land 15. By whose advice he made his Laws 61. Made a strict Law against working on Sundays 57. Ingolsthorp 146. Inland what 12. Intwood 157. K. John's Magna Charta 63. John Marshal to King Henry I. 165. Irregularity of Clergy-men wherein it consists 109 112. I se fluvius unde dictus 135. Ejusdem aestus 139. Islepe Sim Arch-bishop of Canterbury 90. Jury taken out of several Hundreds in a County 53. Jurours prohibited to have meat c. till agreed of their Verdict 89. Jus Gentium 2. Justices of Evre when instituted 27. Justinian the Emperor when he flourish'd 129. He prohibited Clergy-men to take cognizance of Wills ibid. Justitium what 72. K Keninghall 158. Kent the custom of Gavelkind in that County 43. Kettringham 15â— The King the fountain of all Feuds and Tenures 1â— The King to have his Tenants lands till the heir has done homage 3â— The King universal Lord of his whole Territories 37. Anciently granted Churches to Lay-men 115 Knight what among the Saxons 51 58. Why there are but two Knights of the Shire for a County 64. Knight's-fees 3 4 51 58. When introduc'd 45. The number of them ibid. The value of a Knights-fee ibid. Knight-service 2 7. Kymberley 158. S Sacha Soca what in the Saxon tongue 51. Saliques bring the German feodal Rights into France 5. Sall in Norfolk 151. Sandringham 146. Sanhadrim when and where the Judges of it sate 75. Satrapies among the Saxons 50. Saxons the first planters of the German Rites in Great Britain 5. Their Charters translated 7. The manner of making their conveyances 8 Distinction of persons among them 11. How many degrees of Honour they had 16. How they held their lands 40. What oblig'd 'em to so many kinds of services ibid. Saxons very much given to drunkenness 89. When they took possession of England 100. They swept away the Roman Laws there 101 Yet took somewhat from them 102. Why their Laws were not at first put in writing ibid. When they had written Laws ibid. The use of wills unknown to the ancient Saxons 127. Our Saxons observ'd the Civil Law in their wills 128. Scutagium 36 37. Sedgeford 146. Segrave Nicholas Marshal of England 167. Seignory wherein it consists 2. Services how many sorts of 'em upon lands 17. Personal services 40. Praedial ibid. Alodial ibid. Beneficiary ibid. Colonical ibid. Servitia militaria what 46. The difference between them and Servitutes militares ibid Seymour Edward Duke of Somerset Nephew of King Edw. VI. 169. Made Lord Treasurer and Earl Marshal of England ibid. Shardlow Joh Justice of Oyer had a licence to hear causes on a Festival 95 96. Sharnburn 146. History of the Family 189 c. Shelton 156. Shouldham 142. Shyre gemot what 53. Signioral authority what 6â— Snetsham 146 189 190 c. Socage 3 7 33 43. Socmen 1â— 15 57. Sprowston 153. Stanchow 146 19â— Star chamber Court 94 95. Stigand Arch-bishop of Canterbury depos'd 119. Stock-Chappel 146. Stow-Bardolfe 140. Strangbow Gilb Earl of Pembroke and Marshal of the King's Palace 165. Suiters of the Hundred 51. When and by whom call'd at this day ibid. Summons the manner of it in the Empire 36. Sunday how exempted from Law Suits 76. Sustenance what 59. Swasham 141. Swainmote-Courts 85. Syndici who 63 64. Synod of Eanham when held 78. T Talbot George Earl of Shrewsbury 171. Executed the Office of Lord High Steward of England ibid. Tallagium 60. Tasburg 156. Tassilo Duke of Bavaria did homage to King Pipin 34. Tenant lands of how many sorts 4. Tenants by Knight-service 4. Tenant in capite 10. Tenant in menalty ibid. Tenant Paraval ibid. Tenant's land or the Tenancy 12. Tenants what they were in ancient time 51. Tenants in Socage 57. Tenants forc'd to pay a fine upon the marriage of a Daughter 60. To furnish their Lords with provisions ibid. To present them with gratuities ibid. Tenure in capite 2. By Knight-service 4 7. The Original of Tenures 4. Tenure in Socage 4 7. Tenures for Life ibid. What tenures were in use among the Saxons 7. When first us'd ibid. No tenures in capite among the Saxons 10. Tenure in capite of two sorts ibid. The fruits of feodal tenures 24. The name of tenures not us'd by the Saxons 40. Terminus what it signifies 71. When the word became frequent ibid. Terms their definition and etymology 71. Several acceptations of the word 70. Full term and Puisne term ibid. The Original of Terms 73 77. Two Terms among the Welch 74. The Terms laid out according to the ancient Laws 82. The ancient bounds of Hilary-Term 82 83. Of Easter-Term 83. Of Trinity-Term 84 85. Of Michaelmass-Term 85 86. How Trinity Term was alter'd 87. Michaelmass-Term how abbreviated 88. Why the Terms are sometime extended into the Vacation 95. Terra Regis 57. Terrae testamentales 12. Terrington 138. Tertium denarium 14. Testaments and last wills not in use among the ancient Hebrews 127. Not found in Scripture before Christ's time ibid. Expresly mention'd by St. Paul ibid. Not us'd by the Saxons or Normans ibid. The custom of making wills from whom taken up ibid. How many witnesses to a will requir'd by the Civil Law 128. Thane or Theoden who 10 11. Their several kinds 16. Not properly a title of Dignity ibid. The Etymology of their name ibid. The quality of their Persons ibid. The nature of their Land 17. The word Thane has no relation to war 21. A Thane's Heriot 31. Thane-lands not subject to feodal service 18. Charters of Thane-lands granted by Saxon Kings 19 20. The occasion of granting them 21. Thane-lands alienated ibid. Devised by will 22. Granted to women ibid. No service upon 'em but what was express'd ibid. Dispos d of at the pleasure of the owner 23. Charged with a Rent ibid. Might be restrain'd from alienation ibid. Thane-lands and Reveland what 38. Thani majores minores 16. Thani Regis ibid. Theinge 50. His jurisdiction ibid. Theowes and Esnes who 11. Thetford 158. Thokus Dominus de Sharnburn 189. Thola the widow of Ore had a grant of certain lands of K. Edw. the Confessour 20. Obtain'd a Licence to devise her Lands and Goods 34. Thrimsa what 15. Thrithingreves or Leidgerevâ—s their Office and Authority 52. What causes were usually brought before ' em ibid. Tribunus militum rei militaris aut exercitus 165. Tribute 59. Trimarcesia what 3. Trinity-term its ancient bounds 84 85. How it was alter'd and shortned 87. Trinodis necessitas 17 43. Trithings or Lathes 50. Why so call'd 52. Turfs why so call'd 139 140. Tydd
that succeeded and out of his purse The Heriot whether the son or heir enjoy'd the land or not the Relief by none but him only that obtain'd the land in succession The Heriot whether the land were fallen into the Lord's hands or not the Relief in old time not unless it were fallen and lay destitute of a Tenant whose taking of it up out of the Lord's hands was in that sense called Relevium or Relevatio a taking up of that was fallen according to the French word Reliefe Bracton well observ'd the difference saying Fit quaedam praestatio quae non dicitur Relevium sed quasi sicut Heriotum quasi loco Relevii quod dari debet aliquando ante sacramentum fidelitatis aliquando post Hotoman saith Relevium dicitur honorarium munus quod novus Vassallus Patrono introitus causa largitur quasi morte alterius Vassalli vel alio quo casu feudum ceciderit quod jam à novo sublevetur Nov. Leo. 13. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 nominat I stand the longer herein for that not only the Report but even Doomsday it self and generally all the ancient Monkish writers have confounded Heriots and Releifs Yet might I have saved all this labour for nothing can make the difference more manifest than that we often see both of them are together issuing out of the same land But when all is done neither is Heriot nor Releif any badge of land holden by Knight's-service or in Capite for both of them are found in lands of ordinary Socage Yet I confess that Bracton saith de soccagio non datur Relevium and a little before de soccagio non competit domino Capitali Custodia nec homagium ubi nulla Custodia nullum Relevium sed è contra But this serveth my turn very well for that they in the Report having fail'd to prove that Releifs were in use in the Saxons time whereof they affirm'd they had full testimony it now inferreth on my behalf that if Releifs and Wardships were not in use among the Saxons that then also Tenure by Knight-service was not with them Besides all this the Heriot was a certain duty and settled by Law the Relief so various and uncertain as the Lords exacted what they listed for it when it fell into their hands constraining the heir of the Tenant as it were to make a new purchase of their Feud whereupon the Feudists called this Releif not only Renovatio and Restauratio feudi in Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 turning or bringing back of the Feud to the former condition or proper nature of it but also Redemptio a ransoming of it out of the Lord's hands That it thus stood with us in England by and by after the Conquest appears by that we have shewed before out of the Magna Charta of Henry I. CHAP. XIX No Fines for Licence of Alienation TOuching Fines for Licence of Alienation it is not said what kind of Tenants among the Saxons did pay them nor for what kind of land they were paid The Thane-land hereditary is apparently discharg'd thereof by the ordinary words of their Charters before mention'd where 't is said that the owners of lands may give and bequeath them cuicunque voluerint and that freely ab omni munduali obstaculo Doomsday also as we here shewed doth testifie as much and so doth the very word Alodium which the ancient Authors attribute to these lands So that the Thane-lands doubtless were free both from the Fine and Licence But as touching Folcland and land holden at will of the Lord tho' continued in ancient time to their children after the manner of Copy-holds it is no question but that they might both have Licence for aliening such lands and also pay consideration for it as our Copy-holders do at this day I find that one Brictrick in the time of King Etheldred about the year 984. bequeath'd legacies of good value unto his Lord's wife to intreat her Husband that this Brictrick's Will whereby he had devised many lands and goods to Monasteries and divers men might stand And that Thola the widow of Vrke a Thane of Edward the Confessor obtain'd licence from the same King Edward that she might devise both her lands and goods to the Monastery of Abbotsbury But of what nature these Licences were whether to alienate the land or to make a Will or to give the land to Monasteries as in Mortmain I cannot determine If they only intended alienation then I understand them only of Lands holden according to the custom of the time at will of the Lord or Folcland Yet in that Thola's Licence was as well to bequeath her goods expresly as her lands the Licence seemeth to be given therefore to make a Will which no man then could do if not a Thane Quaere But howsoever it be expounded it must not be extended to the Thane-lands or land hereditary for the reasons before alledged And as touching Fines for Licence of Alienation after our manner which the Report suggesteth they could not doubtless be in use among the Saxons for there are not found as I suppose here among us before the time of Edward I. and not established afterwards 'till 1. Edw. III. where the King granteth that from thenceforth lands holden in Chiefe should not be seized as forfeited which formerly they were for Alienation without Licence but that a reasonable Fine should be taken for the same See the Statute CHAP. XX. No Feodal Homage among the Saxons OUr word Man and homo in Latin have for many ages in old time been used by the German and Western Nations for a Servant or Vassal And from thence hominium and vassaticum afterwards homagium was likewise used for hominem agere to do the office or duty of a servant not to signifie Manhood as some expound it and so also Vassalagium But by little and little all these latter words have been restrain'd to note no more than our ceremonial homage belonging properly unto Tenures which I met not with among our Saxons nor any shew thereof in former ages unless we shall fancy that the Devil had it in his eye when he offered to give unto our Saviour all the Kingdoms of the world if he would fall down and worship him For here he maketh himself as Capital Lord our Saviour as the Feodal Tenant the Kingdoms of the world to be the Feud the falling or kneeling down to be the homage and the worshipping of him consisting as the Feodists expound it in six rules of service to be the Fealty Pardon me this idleness but from such missemblances rise many errors Homage as we understand it in our Law is of two sorts one more ancient than the other called homagium ligeum as due unto the King in respect of Soveraignty and so done more Francico to King Pipin by Tassilo Duke of Bavaria about the year 756. The other homagium feodale or praediale belonging to
every feodal Lord and not begun in France 'till Feuds were there made hereditary by Hugh Capet nor in England till William the Conqueror did the like as before appears The reason of it was to preserve the memory of the Tenure and of the duty of the Tenant by making every new Tenant at his entry to recognize the interest of his Lord lest that the Feud being now hereditary and new heirs continually succeeding into it they might by little and little forget their duty and substracting the services deny at last the Tenure it self We see at this day frequent examples of it for by neglecting of doing homage and those services Tenures usually are forgotten and so revolv'd to the King by Ignoramus to the great evil of their posterity that neglect it But the Saxons having only two kind of lands Bocland and Folcland neither of them could be subject unto homage for the Bocland which belong'd properly to their greater Thanes tho' it were hereditary yet was it alodium and libera ab omni seculari gravedine as before is shewed and thereby free from homage And the Folcland being not otherwise granted by the King or his Thanes than at will or for years or for life the tenant of it was not to do any homage for it For Justice Littleton biddeth us note that none shall do homage but such as have an estate in fee simple or fee taile c. For saith he 't is a maxim in law that he which hath an estate but for term of life shall neither do homage nor take homage But admit the Saxons had the ceremony of doing homage among them yet was it not a certain mark of Knights-service for it was usual also in Socage-Tenure And in elder ages as well a personal duty as a praedial that is done to Princes and great Men either by compulsion for subjection or voluntary for their protection without receiving any feud or other grant of land or benefit from them And he or they which in this manner put themselves into the homage of another for protection sake were then called homines sui and said commendare se in manus ejus or commendare se illi and were thereupon sometimes called homines ejus commendati and sometimes commendati without homines as in Doomsday often Tho' we have lost the meaning of the phrase yet we use it even to this day Commend me unto such a man which importeth as much as our new compliment taken up from beyond the Seas let him know that I am his servant See the quotations here annexed and note that tho' the Saxons did as we at this day call their servants and followers homines suos their men yet we no where find the word Tenure or the ceremony of homage among them nor any speech of doing or of respiting homage CHAP. XXI What manner of Fealty among the Saxons SO for Fealty if we shall apply every oath sworn by Servants and Vassals for fidelity to their Lord to belong unto Fealty we may bring it from that which Abraham imposed upon his servant put thy hand under my thigh and swear c. For the Saxons abounded with oaths in this kind following therein their Ancestors the Germans who as Tacitus saith took praecipuum Sacramentum a principal oath to defend the Lord of the Territory under whom they lived and to ascribe their own valour to his glory So likewise the homines commendati before mention'd yea the famuli ministeriales and houshold servants of Noble persons were in ancient times and within the memory of our fathers sworn to be faithful to their Lords These and such other were anciently the oaths of Fealty but illud postremo observandum saith Bignonius a learned French-man of the King 's great Council fidelitatem hodie quidem feudi causa tantum praestari shewing farther that Fealty was first made to Princes by the Commendati and Fideles without any feud given unto them and that the Princes afterwards did many times grant unto them feuda vacantia as to their servants but whether the oath of fealty were so brought in upon feodal tenants or were in use before he doth not determine In the mean time it hereby appeareth that fealty in those days was personal as well as feodal or praedial which imposeth a necessity upon them of the contrary part in the Report that if they meet with fealty among the Saxons they must shew it to be feodal and not personal for otherwise it maintaineth not their assertion I will help them with a pattern of fealty in those times where Oswald Bishop of Worcester granting the lands of his Bishoprick to many and sundry persons for three lives reserv'd a multitude of services to be done by them and bound them to swear That as long as they held those lands they should continue in the commandments of the Bishop with all subjection I take this to be an oath of Fealty but we must consider whether it be personal or praedial If personal it nothing then concerneth Tenures and consequently not our question If praedial then must it be inherent to the land which here it seemeth not to be but to arise by way of contract And being praedial must either be feodal as for land holden by Knight-service or Colonical as for lands in Socage If we say it is feodal then must there be homage also as well as fealty for homage is inseperable from a feud by Knight-service but the estates here granted by Oswald being no greater than for life the Grantees must not as we have shewed either make or take homage And being lastly but Colonical or in Socage it is no fruit of a Tenure in Capite by Knight-service nor belonging therefore to our question So that if fealty be found among the Saxons yet can it not be found to be a fruit of Knight-service in Capite as the Report pretendeth it See Fidelitas in my Glossary CHAP. XXII No Escuage among the Saxons What in the Empire THe word Scutagium and that of Escuage is of such novelty beyond the Seas as I find it not among the feudists no not among the French or Normans themselves much less among the Saxons Yet I meet with an ancient law in the Novella of Constantine Porphyrogenita Emperour of Greece in the year 780. that gives a specimen of it tho' not the name Quaedam esse praedia militaria quibus cohaereat onus Militiae ita ut possessorem necesse sit se ad militiam comparare domino indicante delectum vel si nolit aut non possit se ad delectum exhibere certam eo nomine pecuniam fisco dependere quae feudorum omnium lex est c. This tells us that there were certain lands to which the burden of warfare was so adherent that every owner of them was tyed upon summons made by his Lord to make his appearance therein or else to pay certain money by way