Towns call'd Burgesses and the Barons of the Cinque-ports The first sort are to appear personally or by particular Proxies for the words as touching them are Summoniri faciemus sigillatim but as touching the others it is Summoniri faciemus generaliter c. not that all should come confusedly but that they should send their Advocates which commonly are but two to speak for them These the French in their Parliaments call Ambasiatores and Syndicos In the first rank the Earls and greater Barons have their place in this Council for that they hold of the King in Capite by a Baronie And the Bishops and Abbots with them of the second rank so likewise for that it was declared and ordained in the Council of Clarendon that they should have their possessions of the King as a Barony and should be suiters and sit in the King's Court in judgements as other Barons till it came to the diminution of Members or matter of death But this Council of Clarendon did rather affirm than give them their priviledge For the Prelates of the Church were in all ages the prime part of these great Councils In the third rank the Burgesses and Barons of the Cinque-ports have their place not so much in respect of Tenure for they were not conceived to be owners of lands but for that in Taxes and Tallages touching their goods and matter of Trade they might have some to speak for them as well as other Members of the Kingdom But here then ariseth a question how it cometh to pass that every poor Burrough of England how little soever it be two excepted have two to speak for them in this great Council when the greatest Counties have no more It seemeth that those of the Counties whom we call Knights served not in ancient time for all the Free-holders of the County as at this day they do but were only chosen in the behalf of them that held of the King in Capite and were not Barones majores Barons of the Realm For all Freeholders besides them had their Lord Paramount which held in capite to speak for them as I have shewed before and these only had no body for that themselves held immediately of the King Therefore King John by his Charter did agree to summon them only and no other Freeholders howbeit those other Freeholders because they could not always be certainly distinguish'd from them that held in capite which encreased daily grew by little and little to have voices in election of the Knights of the Shire and at last to be confirm'd therein by the Stat. 7. Henr. IV. and 8. Henr. VI. But to come to our question why there are but two Knights for a County It may well seem to be for that in those times of old there were very few besides the Barons that held in capite as appeareth by that we have already spoken and that two therefore might seem sufficient for these few as well as two for the greatest Burroughs or City of England except London And it may be that of the four which serve for London two of them be for it as it is a City and two other as it is a County tho' elsewhere it be not so But when two came first to be chosen or appointed for the rest of the Burrough or County I cannot find It seemeth by those Synods that were holden in the times of the Saxon Kings and by some after the Conquest that great numbers of the common people flowed thither For it is said in An. 1021. Cum quamplurimis gregariis militibus ac cum populi multitudine copiosa And An. 1126. Innumeraque Cleri populi multitudine and so likewise in An. 1138. and other Synods and Councils By what order or limitation this innumera populi multitudo came to these Assemblies it appeareth not Bartol that famous Civilian and Hottoman according with him thus expoundeth it in other places Nota quod Praesides Provinciarum coadunant universale Parlamentum Provinciae quod intellige non quod omnes de Provincia debent ad illud ire sed de omnibus Civitatibus deputantur Ambasiatores qui Civitatem repraesentant And Johan de Platea likewise saith Vbi super aliquo providendum est pro utilitate totius Provinciae debet congregari generale Concilium seu Parlamentum non quod omnes de Provincia vadant sed de qualibet Civitate aliqui Ambasiatores vel Syndici qui totam Civitatem repraesentent In quo Concilio seu Parlamento petitur proponi sanum ac utile consilium But our Burgesses as it seemeth in time of old were not call'd to consult of State matters being unproper to their Education otherwise than in matter of Aide and Subsidy For King John granteth no more unto them than ad habendum commune consilium regni de auxiliis assidâ—ndis if his Charter be so pointed that this clause belong to that of the Liberties granted to them which is very doubtful and seemeth rather to belong to that which followeth otherwise there are no words at all for calling them unto the great Councils or Parlaments if you so will term them of that time And yet further it is to be noted that this whole branch of his Charter touching the manner of his summoning a great Council was not comprised in the Articles between him and his Barons whereupon the Charter was grounded but gain'd from him as it seemeth afterward And that may be a reason why it is left out in the Magna Charta of Henry III. confirm'd after by Edward I. in such manner as now we have it The Charter of these Articles I have seen under his own Seal After the death of King John I find many of these great Councils holden and to be often named by the Authors of that time Colloquia after the French word Parlament but no mention in any of them of Burgesses saving that in An. Dom. 1225. Regis 10. it is said that the King held his Christmass at Westminster Praesentibus clero populo cum Magnatibus regionis and that the solemnity being ended Hugh de Burgo the King's Justice propounded to the Arch-Bishop Bishops Earls Barons aliis universis the losses the King had received in France requiring of them one XV th And in the year 1229. the King summoneth to Westminster Archiepiscopos Episcopos Abbates Priores Templarios Hospitalarios Comites Barones Ecclesiarum Rectores qui de se tenebant in capite about the granting a tenth to the Pope wherein those that held in capite are call'd as in Henr. II. to the Council of Clarendon and as the Charter of King John purporteth but no mention is here made of Burgesses THE ORIGINAL OF THE FOUR TERMS Of the Year By Sir HENRY SPELMAN Kt. Printed in the Year 1684. from a very uncorrect and imperfect Copy Now Publish'd from the Original Manuscript in the BODLEIAN Library Sir William Dugdale in his Origines Juridiciales Chap. 32.
by the Saxons it casteth anchor chiefly on Reliefs as a thing most evident and unanswerable the rest save Wardship it scarcely fortifieth with a breath besides the bare assertion This it saith was common and in pursuit thereof addeth these words For Reliefs we have full testimony in the Reliefs of their Earls and Thanes for which see the laws of King Canutus Cap. 68 and 69. the laws of Edw. the Confessor cap. de Heretochiis and what out of the book of Doomsday Coke hath in his Instit Sect. 103. Camden in Berkshire Selden in Eadmer 154. Great authorities secumque Deos in praelia ducunt We must not meddle with them all at once let us try them singly The law cited out of Canutus is in these words And beon ða heregeata Let the heriot which was to be paid after the death of great men be according to their dignities An Earl's eight Horses four sadled and four unsadled four Helmets four Corslets eight Spears and as many Shields four Swords and two hundred marks of Gold The heriot of a Thane next to the King four Horses two sadled and two unsadled two Swords four Spears four Shields one Helmet one Corslet and fifty marks Of the inferiour or midling Thane an Horse furnished and his weapon c. And he that less hath and less may let his heriot be two pound Here is speech indeed of an heriot but none of Relief I shall anon shew the difference between them and then hath this law nothing against me Touching the law alledged to be Edward the Confessor's the words be these Qui in bello ante Dominum suum ceciderit sit hoc in terra sit alibi sint ei relevationes condonatae c. Here I confess is mention of Reliefs but I deny this to be the law of Edward the Confessor 't is true that it is published by Lambard among his receiv'd laws but if you mark it in a differing letter as noting it to be an addition In an ancient MS. therefore which I have of those laws it is not sound nor in the printed copy of Roger Hoveden who wrote till the third year of King John that is 134. years after the Confessor's time with reverence therefore be it spoken it is mistaken both in the Report and by my Ld. Coke himself whom it followeth if they say that these words were part of the law of Edw. the Confessor yea the text it self maketh ..... of William the younger call'd Rufus But to conceal no truth it is delivered by Jornalensis Monachus in the very same words as a law of an elder King amongst us than the Confessor namely of Canutus our Danish King who in the 157. Chap. of his laws speaking of one slain in battel in the presence of his Lord saith expresly Sint ei relevationes condonatae Now the game seemeth to be wonn but stay a while and remember what I said before of the translations of our Saxon Laws and Charters into Latin The Saxons and the Danes whose Language and Laws differ'd little in those days wrote their Laws only in their own tongue and the translating of them hath begotten much variety and many controversies we must therefore resort to the original Saxon where this passage is in the 75 th Chap. of the second part of his Laws in these words se man ðe aet ðam syâ—dung toforan his hlaâ—ord â—ealle sy hit innan lande sy hit of lande beon herogeata forgyfene which is thus verbatim The man that in a military Voyage is slain before or in the presence of his Lord be it upon land or off of land let the Heriots be forgiven him He saith not let the Releifs but let the Heriots be forgiven him and I deny not but this might be one of the Danish Laws which Edward the Confessor took out of Canutus's Laws when he compos'd the Common Law out of the West Saxon Law Mercian Law and Dane Law if the copies of them were extant and it is very probable that William the Conquerour or one of his sons did turn that Law of Heriots into this of Reliefs For that which my Lord Coke hath out of Doomsday is the same which Mr. Cambden hath in Barkshire touching all that County Vt Tainus vel Miles Regis Dominicus moriens pro releviamento dimittebat Regi omnia arma sua Equum unum cum sella alium sine sella quod si essent canes vel accipitres praestabantur Regi ut sivellet acciperet Here is releviamentum us'd in the Conquerour's time which I doubt not but our Question is of it in the time of the Saxons That also cited by and out of Mr. Selden is of the same nature and one answer therefore serveth to all the three Yet by way of corollary I shall anon discover another error of this sort rising even from Doomsday it self and the Normans possessing this Kingdom of the Saxons but not well instructed in their Laws and Customs which is as followeth CHAP. XVIII Difference between Heriots and Reliefs HEriots were usual among the latter Saxons Reliefs among the elder Normans before their coming into England This according to the custom of the Feudal Law and other Nations that ordain'd by Ludovicus al. Clodoveus King of France about the year 511. to tame the Almans whom he then had brought to servitude I find it not in England till the Soveraigntie of the Danes The first Laws which I find that mention it are those of Canutus before mentioned who perhaps for the assurance of his throne us'd this politick device to have all the Armour of the Kingdom at his disposition in this manner when he had dismissed his Danish Army But it falling so out as the Heriot being to be paid at or after the death of the Old Tenant and the Relief at or before the entry of the new the Normans in this did like our Ancestors the Saxons who because our Christian Pascha or Passover fell out yearly to be celebrated about the time of the Feast of their Idol Easter call'd our Passover by the name of their Easter so they seem to have conceiv'd the Saxon heriot to be the same that their Norman Relief was and therefore translated the word heriot by Releviamentum or Relevium and raising the form of their Feudal Law in England drew the Saxon customs to cohere therewith as much as might be But there is great difference between Heriots and Reliefs for Heriots were Militiae apparatus which the word signifieth and devised as I said before to keep the conquered Nation in subjection and to support the publick strength and military furniture of the Kingdom the Reliefs for the private commodity of the Lord that he might not have inutilem proprietatem in the Seignory The Heriots were therefore properly paid in habiliments of war the Reliefs usually in money The Heriot for the Tenant that died and out of his goods the Relief for the Tenant
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
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
homicidium casu commissions culpa non praecedente non est imputandum And Sibi imputari non debet quia fortuitos casus qui praevideri non possunt non praevidit And De casu fortuito nullus tenetur cum praevideri non possit And upon this the stream of the Canonists do run as by a multitude of Books may be shew'd with whom our Bracton a great Civilian and Common Lawyer too Homicidium casuale non imputatur 5. The two heads whereto the Law looketh freeing a man from blame and expresly from Irregularity are that the person by whom the Action is perform d do not dare operam rei illicitae and that he use diligence of his part that no hurt be committed Azorius the Jesuite saith Irregularitas cum ob delictum constituitur non nisi ex lethali peccato contrahitur nisi ex homicidio fiat quis irregularis eo quod det operam rei vetitae interdictae nam tunc quamvis homicidium casu sequatur ob culpam nostram levem vel levissimam multorum est opinio irregularitatem contrahi And Ivo in his Canons some hundreds of years before him Si duo fratres in sylva arbores succiderint appropinquante casura unius arboris frater fratri dixerit Cave ille fugiens in pressuram arboris inciderit ac mortuus fuerit vivens frater innocens de sanguine germani dijudicatur Now the caâ—e at Bramsil is within the compass of these two conditions For the party agent was about no unlawful work for what he did was in the day in the presence of fourty or fifty persons the Lord Zouch who was owner of the Park not only standing by but inviting to Hunt and Shoot and all persons in the Field were call'd upon to stand far off partly for avoiding harm and partly lest they should disturb the Game and all in the Field perform'd what was desir'd And this course did the Lord Arch-bishop use to take when or wheresoever he did shoot as all persons at any time present can witness never any man being more solicitous thereof than he evermore was And the morning when the deed was done the Keeper was twice warn'd to stay behind and not to run forward but he carelesly did otherwise when he that shot could take no notice of his galloping in before the Bow as may be seen by the Verdict of the Coroner's Inquest 6. This case at Bramsill is so favourable that the strictest Writers of these times directly conclude that if a Clergy-man committing casuale homicidium be about a forbidden and interdicted act yet he is not irregular if the interdicted act be not therefore forbidden because it may draw on Homicide And thereupon inasmuch as Hunting is forbidden in a Clergy-man not in respect of danger of Life but for Decency that he should not spend his time in Exercises which may hinder him from the study fit for his Calling or for other such reasons Irregularity followeth not thereupon And to this purpose writeth at large Soto Covarruvias and Suarez who are great Canonists and Schoolmen And if this be true as out of great reason it may be so held how much further is the present case in question from Irregularitie 7. But some go directly to the point and say that the Lord Arch-bishop did navare operam rei illicitae because he was on Hunting for that was interdicted to a Bishop by the Canon De Clerico Venatore and so by a consequent he must needs be Irregular To which objection see how many clear and true answers there be As first that the Canon being taken out of the Decrees is by Gratian himself branded to be Palea no better than Chaff Secondly it is cited out of the fourth Council of Orleans and there is no such thing to be found as the Gloss well observeth Thirdly it forbiddeth Hunting cum canibus aut accipitribus and none of these were at Bramsil And if you will enforce it by comparison or proportion the rule of the Law is Favores sunt ampliandi odia restringenda Where mark when Hunting with Dogs or Hawks is forbidden it is not for fear of Slaughter for there is no such danger in either of them Fourthly the Canon forbiddeth Hunting voluptatis causa but not recreationis or valetudinis gratia which the Books say is permitted etiam Episcopo Fifthly the Canon hath Si saepius detentus fuerit if he make a Life or Occupation of it which the world knoweth is not the Arch-bishop's case but a little one time in the year directed so by his Physician to avoid two diseases whereunto he is subject the Stone and the Gout Sixthly it is clamosa venatio against which the Canon speaketh not quieta or modesta which the Canonists allow and this whereof the question ariseth was most silent and quiet saving that this accident by the Keeper's unadvised running in hath afterwards made a noise over all the Countrey 8. These Exceptions as they naturally and without any enforcing give answer to this Objection of the Canon so there is another thing that may stop the mouth of all Gain-sayers if any Reason will content them And that is that by the Stat. of Henr. VIII 35. ca. 16. no Canon is in force in England which was not in use before that time or is not contrary or derogatory to the Laws or Statutes of this Realm nor to the Prerogatives of the Royal Crown of which nature this is For in Charta de Foresta Archbishops and Bishops by name have liberty to Hunt and 13. Ric. II. cap. 13. a Clergy-man who hath 10l. by the year may keep grey-hounds to hunt And Linwood who liv'd soon after that time and understood the Ecclesiastical Constitutions and the Laws of England very well in treating of Hunting speaketh against Clergy-men using that exercise unlawfully as in places restrain'd or forbidden but hath not one word against Hunting simply And the Arch-bishop of Canterbury had formerly more than twenty Parks and Chaces of his own to use at his pleasure and now by Charter hath free-warren in all his lands And by ancient Record the Bishop of Rochester at his death was to render to the Arch-bishop of Canterbury his Kennel of Hounds as a mortuary whereof as I am credibly inform'd the Law taketh notice for the King Sede vacante under the name of Muta canum and Mulctura To this may be added the perpetuated use of Hunting by Bishops in their Parks continu'd to this day without scruple or question As that most Reverend man the Lord Arch-bishop Whitgyfte us'd in Hartlebury-park while he liv'd at Worcester in Ford-park in Kent in the Park of the Lord Cobham near Canterbury where by the favour of that Lord he kill'd twenty Bucks in one journey using Hounds Grey-hounds or his Bow at his pleasure although he never Shot well And the same is credibly reported of the Lord Arch-bishop Sandes And it is most true that the
the Canon led him no further being only De Clerico de Transgressione Forestae aut Parci alicujus diffamato and made to no other intent than to aggravate the censure of the Ecclesiastical Law which before was not sharp enough against Offenders in that kind But Johannes de Athon as great a Canonist and somewhat elder whom Linwood often citeth and relyeth upon as one well understanding the Ecclesiastical Constitutions and the Laws of England hath apparently condemned it in the place by me recited Yet is it to be noted that neither Athon nor Linwood intended to Gloss upon all the Constitutions of the Church of England but Athon only upon those of Otho and Othobon and Linwood beginning where Athon left upon those of Stephen Arch-bishop of Canterbury and his Successors There are therefore a great number of Canons and Constitutions of the Church of England which neither of these Canonists have either meddled with or so much as touched as also there be many Statutes in force which are no where mentioned in any of the Abridgements But Jo. de Burgo another English Canonist and Chancellour of Cambridge who wrote in Richard the Second's time taketh notice of this Canon and that Hunting was thereby forbidden to our Clergy-men as appeareth in his Pupilla Oculi part 7. ca. 10. m To go on The Apology saith That the Arch-bishop of Canterbury had formerly more than twenty Parks and Chases to use at his pleasure and by Charter hath Free-warren in all his lands Habutsse lugubre it seemeth the Wisdom of the latter times the more pâ—ty dissented from the former yet did not the former approve that Bishops should use them at their pleasure but as the Laws and Canons of the Church permitted For as they had many Parks and Warrens so had they many Castles and Fortresses and might for their safety dwell in them but as they might not be Souldiers in the one so might they not be Huntsmen in the other In like sort the Abbat and Monks of St. Alban's as Mat. Paris reporteth the case in An. 1240. pa. 205. had Free-warren at St. Alban's c. by grant of the Kings and recovered damages against many that enter'd into the same and Hunted for the having of it was lawful as appeareth in the Clementines Tit. de Statu Monast § Porro a Venatoribus But it is there expresly forbidden that either they should Hunt in it themselves or be present when others do Hunt or that they should keep Canes venaticos aut infra monasteria seu domus quas inhabitant aut eorum clausuras pa. 207. Radulphus de Diceto in An. 1189. saith That the Bishops of that time affected to get into their hands Comitatus Vice-Comitatus vel Castellarias Counties Sheriffwicks and Constable-ships of Castles but shall we think they either did or might use them in their own Persons as with Banners display'd to lead forth the Souldiers of their County or with Sword and Target to defend the walls of their Castles or with a white wand to collect the King's Revenues c. It is true that Walter Bishop of Durham having bought the County of Northumberland of William the Conquerour would needs sit himself in the County-Court but he paid dearly for it for his Country-men furiously slew him even sitting there Matt. Paris in An. 1075. So Hugh Bishop of Coventry exercised the Sheriff's place but was excommunicate for it as contra dignitatem Episc and so acknowledged his error Dicet in An. 1190. But every one will say It was a common thing in old time for Bishops to be Judges in secular Courts I confess it and think it godly and lawful as it was used at the first For the Bishop and the Earl sat together in the County-Court the Bishop as Chancellor to deliver Dei rectum and populum doâ—ere the Earl as Secular Judge to deliver rectum seculi and populum coercere as is manifest by the Laws of King Edgar and others But when the Bishops began to supply both places and to be meer Judges of Secular Courts then were they prohibited by many Canons And therefore Roger Bishop of Salisbury being importuned by the King to be his Justice would by no means accept it till he had obtained Dispensation not only from his Metropolitan the Arch-bishop of Canterbury but from the Pope himself as Dicetus affirmeth in An. 1190. and no doubt but others of wisdom did the like In those things therefore that Bishops did against Canons we must take no example to follow them for tho' their publick actions be manifest yet their dispensations and matter of excuse is for the most part secret Neither doth every thing done against a Canon produce Irregularity if some criminous mischance follow not thereon For the Record that relateth that the Bishop of Rochester was at his death to render to the Arch-bishop of Canterbury his kennel of Hounds as a mortuary and that the Law takes notice of it for the King sede vacante under the name of Muta canum and Mulctura I must as they say in the Law demand Oyer of the Record we shall otherwise spend many words in vain But that Dogs should be given for a Mortuary is against all likelyhood For a Mortuary is as an offering given by him that dieth unto the Church in recompence of his Tithes forgotten and it is a plain Text Deuter. 28. 18. Non offeres mercedem prostibuli nec pretium canis in domo Domini But if there be no other word to signify a kennel of Hounds than Muta canum and Mulctura the exposition may be doubtful tho' it come somewhat near it Freder II. Emp. in the Prologue to his second Book de Venatione speaking of an Hawks-mue saith Domicula quae dicitur Muta following the Italian Vulgar which cometh à mutando because the Hawk doth there change her coat And for the affinity between Dogs and Hawks it may be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 transferred to a Dog-kennel and whether to the Hounds themselves or no it is not much material For no doubt they that may have Parks and Warrens may have Dogs and Hounds for Hunting but every body that may have Hounds may not use them themselves as appeareth by that which I said before out of the Clementines and by the opinion of Justice Brudnel with the rest of the Judges 12. Henr. VIII fol. 5. where it is said a man may keep Hounds notwithstanding the Statute of 13. Ric. II. but he must not Hunt as he may keep Apparel of Cloth of Gold notwithstanding the Statute of Apparel but he must not wear it Besides Religious persons in ancient times were driven to have Dog-kennels for the King's Hounds for Rad. Niger in An. ..... saith that King Henry II. Abbates hypodromos canum custodes fecit After all this his Lordship is defended with the perpetual use of Hunting by Bishops in their Parks and by the particular examples of some eminent men his Predecessors
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
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.