p. 121. VIII Of the Original of Testaments and Wills and of their Probate to whom it it anciently belong'd p. 127. IX Icenia sive Norfolciae Descriptio Topographica p. 133. X. Catalogus Comitum Marescallorum Angliae p. 165. XI Dissertatio de Milite p. 172. De aetate Militari p. 174. De evocatis ad Militiam suscipiendam p. 175. De modo â—reandi Militem honoratum primo de Cingulo militari p. 176. Qui olim fiebant Milites p. 179. Qui possint militem facere p. 180. Judices etiam sub appellatione Militum censeri scil Equ esse Palatinos p. 182. De loco tempore Creationis p. 183. De Censu militari p. 184. Modus Exauctorandi Militem quod Degradare nuncupatur XII Historia Familiae de Sharnburn p. 187. XIII Familiae Extraneorum sive Lestrange accurata descriptio p. 200. XIV A Dialogue concerning the Coin of the Kingdom particularly what great treasures were exhausted from England by the usurpt Supremacy of Rome p. 203. XV. A Catalogue of the Places or Dwellings of the Arch-bishops and Bishops of this Realm now or of former times in which their several Owners have Ordinary Jurisdiction as if parcel of their Diocess tho' they be situate within the precinct of another Bishop's Diocess p. 211. THE Original Growth Propagation and Condition OF FEUDS and TENURES BY KNIGHT-SERVICE In ENGLAND CHAP. I. The occasion of this Discourse and what a Feud is IN the great case of Tenures upon the Commission of Defective Titles argued by all the Judges of Ireland and published after their resolution by the commandment of the Lord Deputy this year 1639. it fell out upon the fourth point of the Case to be affirmed That Tenures had their original in England before the Norman Conquest And in pursuit of this Assertion it was concluded That Feuds were then and there in use In proof hereof divers Laws and Charters of the Saxon Kings and some other Authorities be there alledged which being conceived to have clear'd that point it thus followeth in the Report p. 35. And therefore it was said that Sir Henry Spelman was mistaken who in his Glossary verbo Feodum refers the original of Feuds in England to the Norman Conquest And for a Corollary p. 38. addeth these words Neither is the bare conjecture of Sir Henry Spelman sufficient to take away the force of these Laws Vide Spelman in Glossar verbo Feodum Being thus by way of voucher made a chief Antagonist to the Reverend opinion of these learned grave and honour'd Judges I humbly desire of them that writing what I did so long ago and in a transitory passage among a thousand other obscure words not thinking then to be provok'd to this account they will be pleas'd to pardon my mistakings where they fall and to hear without offence what motives led me to my conjectures which they speak of It is necessary therefore that first of all we make the question certain which in my understanding is not done in the Report For it is not declared whether there were divers kinds of Feuds or no nor what kind they were that were in use among the Saxons nor what kind those were that I conjectured to be brought in by the Norman Conqueror I will therefore follow the direction of the Orator and fix the question upon the definition A Feud is said to be Vsus fructâ—s quidam rei immobilis sub conditione fidei But this Definition is of too large extent for such kind of Feuds as our Question must consist upon for it includeth two members or species greatly differing one from the other the one Temporary and revocable as those at Will or for Years Liâ—e or Lives the other Hereditary and perpetual As for Temporary â—euâ—s which like wild fig-trees could yield none of the feodal fruits of Wardship Marriage Relief c. unto their Lords they belong nothing unto our argument nor shall I make other use in setting of them forth than to assure the Reader they are not those that our Laws take notice of To come therefore to our proper Scheme let us see what that Hereditary Feud is whereupon our Question must be fixed for none but this can bear the feodal fruits we speak of Wardship Marriage c. A Feud is a right which the Vassal hath in Land or some immoveable thing of his Lord's to use the same and take the profits thereof hereditarily rendring unto his Lord such feodal duties and services as belong to military tenure the meer propriety of the soil always remaining unto the Lord. I call it as the Feudists do Jus utendi praedio alieno a right to use another mans Land not a property in it for in true feodal speech the Tenant or Vassal hath nothing in the propriety of the soil it self but it remaineth intirely unto the Lord and is comprehended under the usual name which we now give it of the Seignory So that the Seignory and the Feud being joyned together seem to make that absolute and compleat estate of Inheritance which the Feudists in time of old called Allodium But this kind of Feud we speak of and no other is that only whereof our Law taketh notice though time hath somewhat varied it from the first institution by drawing the propriety of the soil from the Lord unto the Tenant And I both conceive and affirm under correction That this our kind of Feuds being perpetual and hereditary and subject to Wardship Marriage and Relief with other feodal services were not in use among our Saxons nor our Law of Tenures whereon they depend once known unto them As shall appear by that which hereafter followeth CHAP. II. The Original Growth and Propagation of Feuds first in general then in England BEfore I enter into the Question in hand it will be necessary for better understanding that which followeth to set forth the original growth propagation and condition of Feuds in general which I conceive to be thus There were no doubt from the beginning of Jus Gentium Lords and Servants and those servants of two sorts Some to attend and guard the person of their Lord upon all occasions in War and Peace Some to manure his Lands for the sustenance of him and his Family When private Families were drawn into a Kingdom the Kings themselves held this distribution Examples hereof are in all Nations King David well observ'd it in the Institution of the Kingdom of Israel where if such services have any shew of Feuds or Tenures we have a pattern for them all viz. For that of Francalmoine in the Levites for Knight-service Tenure in Capite and Grand Serjeanty in the Military men which serv'd the King personally by monthly courses for Socage in those whom David appointed to manure the Fields dress the Vineyards the Olive-trees the Mulberry-trees and that had the care of the Oyl of the Oxen of the Camels Asses Sheep c. For the
Carew Contrary to a perswasion very common now adays That Philosophy Oratory Poetry and the other Exercises which take up the first four years in our Universities are altogether foreign to the business of Lawyers and that the study of them is so much loss of time to Gentlemen design'd for that honourable Profession After he had continu'd at home about a twelve-month he was sent to study the Law at Lincoln's-Inn either with a design to practise it or which is more likely as a necessary accomplishment of an English Gentleman There he stay'd almost three years but was then unhappily remov'd when we may imagine he began to relish the Law and in some measure to conquer the difficulties of it Many years after we find him complaining of his hard Fortune in the Preface to his Glossary and he concludes his complaint with a character of the Common-Law which I will here transcribe for the honour of the Profession Excussit me interea è Clientela sua speaking of the Law gratiae potestatis dignitatis immensaeque apud nos largitrix opulentiae Illa inquam vestitu simplici inculto sed jurium omnium Municipalium absit dictis invidia nobilissima domina omni utpote justitia moderamine prudentia sublimique acumine temere licet eam perstrinxerit Hottomannus refertissima He was about twenty years of Age and retiring into the Countrey married the eldest Daughter and Coheir of John Le Strange a Gentleman of an ancient Family in Norfolk By this match he became Guardian to Sir Hamon Le Strange during whose Minority he liv'd at Hunstanton the Seat of that Family and was High Sheriff of Norfolk By degrees he begun to be taken notice of for his great Prudence and Abilities and was accordingly three several times sent by the King into Ireland upon publick business At home he was appointed one of the Commissioners To enquire into the oppression of exacted Fees in all the Courts and Offices of England as well Ecclesiastical as Civil which a late Author calls A noble Examination and full of Justice To this business he gave his constant attendance for many years together with great integrity and application and the Government was so sensible of his good services that the Council procur'd his Majesties Writt of Privy Seal for 300l. to be presented to him not as a full Recompence for so they declar'd but only as an occasional Remembrance till they should have an opportunity of doing something for him that might be a more suitable consideration for his diligence in that and other publick Affairs This attendance made him neglect his own private business to the great prejudice of his Family as he himself seems to complain in his Preface to the Glossary And his eldest Son Sir John Spelman represented to the Privy Councel how much his Father's Estate had suffer'd by it appealing for a proof of his great pains therein to the knowledge of several of their Lordships to the Journals of that Commission and to his papers and collections relating to the same I cannot give any particular account of the other publick Services wherein he was employ'd He was Knighted by K. James who had a particular esteem for him as well on account of his known capacity for business as his great Learning in many kinds more especially in the Laws and Antiquities of our Nation These for a good part of his Life he seems to have study'd for the service of his Prince and his own diversion but not with an eye to any particular design When he was about 50. years of Age he resolv'd to draw his affairs into as narrow a compass as might be with a full design to bestow the remainder of his time among Books and Learned Men. With this resolution he sold his Stock let his Estate quitted the Countrey and settl'd in London with his wife and family His next business was as he himself tells us to get together all such Books and Manuscripts as concern'd the subject of Antiquities whether foreign or domestick For in these Enquiries he had ever had a particular delight and now being in a good measure free'd from the daily disturbances he was before exposed to it was natural for him to fall into a study to which his own genius had always led him It is likely he had then a good understanding of the Laws and Customs of the Kingdom I mean the Modern part of them such as is commonly us'd in the ordinary practice of it But such a general knowledge could not satisfie a Mind so curious and a Judgement so solid as his appears to have been in all his Writings These inclin'd him to search into the Reasons and Foundations of the Law which he knew were not to be learnt but from the Customs and Histories of our Nation in all Ages nor these Usages to be trac'd out but by a strict examination of the most ancient Records and Manuscripts And as his own inclination led him to this Enquiry so not troubling himself with the Practice of the Law but content to live quietly upon his own Estate he was perfectly at leasure to pursue it And indeed as the best things in this world are attended with inconveniences it is very much to the disadvantage of the Law that those of the Long Robe who are best qualified to improve the knowledge of it from original Records are so much taken up with the business of their Profession that they have little time to bestow upon those matters As on the other hand Men who are born to Leasure and Estates however inclinable they may be to the more polite parts of Learning do seldom care to engage in a study which at first sight seems to be so rough and tedious Thus the one wants Leasure and the other Resolution and so the Monuments of our Fore-fathers being neglected we are depriv'd of a great deal of useful knowledge that might be drawn from them It was the happiness of Sir Henry Spelman and much more of the English Nation that he had both time and inclination to do it I mean to examine the ancient Laws and Monuments not only of our own but also of most other Northern Kingdoms Particularly he was very well versed in the old Feudal law and has shewn us in a Discourse upon that head how most of the Tenures here in England have their foundation from thence This near relation between their Customs and our Constitutions made him many times marvel that my Lord Cooke adorning our Law with so many flowers of Antiquity and foreign learning should not turn aside into this field from whence so many roots of our Law have of old been taken and transplanted And I wish so he goes on some worthy Lawyer would read them diligently and shew the several heads from whence these of ours are taken They beyond the seas are not only diligent but very curious in this kind but we
Majesty would please to consider his Son Accordingly the King sent for Mr. Spelman and with many expressions of kindness immediately conferr'd on him the honour of Knighthood After the Civil Wars broke out his Majesty by a Letter under his own hand commanded him from his own house in Norfolk to give his attendance at Oxford where he was oftentimes call'd to Private Councel and employ'd to write several papers in Vindication of the Proceedings of the Court But while he was thus attending the affairs of the Publick and when these would give him leave his own Private Studies he fell sick and died the 25. of July 1643. His Funeral Sermon by his Majestie 's special order was Preached by Arch-bishop Usher an intimate Acquaintance both of the Father and Son In the Year 1640. he had publisht the Saxon Psalter from an ancient MS. of Sir Henry's which as he tells us in the Preface was a task enjoyn'd him by his Father He also wrote the Life of King Alfred in English which having layn several years in Manuscript was at last translated into Latin and publisht in 1678. with Mr. Walker's Commentary upon it Clement Spelman youngest Son to Sir Henry was a Councellor and made Puny Baron of the Exchequer upon the Restoration of King Charles II. He publisht some peices relating to the Government and a large Preface to his Father's Book De non temerandis Ecclesiis Dying in June 1679. he was buried in St. Dunstan's Church in Fleet-street To return to Sir Henry He dy'd in London at the house of Sir Ralph Whitfeild his Son-in-law being about 80. years of Age. His body by the favour of King Charles was appointed to be inter'd in Westminster-Abbey whither it was carried with great solemnity on the 24 th of October 1641. and buried at the foot of the Pillar over against Mr. Camden's Monument The Several DISCOURSES Contain'd in this Volume 1. THe Original Growth Propagation and Condition of Feuds and Tenures by Knight-service in England pag. 1. CHAP. I. The occasion of this Discourse and what a Feud is p. 1. CHAP. II. The Original Growth and Propagation of Feuds first in general then in England p. 2. CHAP. III. That none of our Feodal words nor words of Tenure are found in any Law or ancient Charter of the Saxons p. 7. CHAP. IV. Of Tenures in Capite more particularly p. 10. CHAP. V. What degrees and distinctions of Persons were among the Saxons and of what coudition their Lands were p. 11. CHAP. VI. Of Earls among our Saxons p. 13. CHAP. VII Of Ceorls and that they were ordinarily but as Tenants at will or having Lands held not by Knight-service p. 14. CHAP. VIII Of Thanes and their several kinds p. 16. CHAP. IX Charters of Thane-lands granted by Saxon Kings not only without mention of Tenure or Feodal-service but with all Immunity except Expedition c. p. 19. CHAP. X. Observations upon the precedent Charters shewing that the Thane-lands or Expedition were not Feodal or did lye in Tenure p. 21. CHAP. XI More touching the freedom of Thane-land out of Doomsday p. 23. CHAP. XII The fruits of Feodal Tenures and that they were not found among the Saxons or not after our manner p. 24. CHAP. XIII No profit of Land by Wardship in the Saxons time p. 25. CHAP. XIV No Wardship in England amongst the Saxons objections answer'd p. 25. CAAP. XV. No Marriage of Wards p. 29. CHAP. XVI No Livery no Primer-seisin p. 30. CHAP. XVII That Reliefs whereon the Report most relyeth were not in use among the Saxons nor like their Heriots p. 31. CHAP. XVIII Difference between Heriots and Reliefs p. 32. CHAP. XIX No Fines for Licence of Alienation p. 33. CHAP. XX. No Feodal Homage among the Saxons p. 34. CHAP. XXI What manner of Fealty among the Saxons p. 34. CHAP. XXII No Escuage among the Saxons what in the Empire p. 36. CHAP. XXIII No Feodal Escheate of hereditary Lands among the Saxons p. 37. CHAP. XXIV Thaneland and Reveland what no marks of Tenure but distinctions of Land-holders p. 38. CHAP. XXV How the Saxons held their Lands and what obliged them to so many kinds of Services p. 40. CHAP. XXVI The Charter whereby Oswald Bishop of Worcester disposed divers Lands of his Church after the Feodal manner of that time entituled Indiculum Libertatis de Oswalds-Laws-Hundred p. 41. CHAP. XXVII Inducements to the Conclusion p. 43. CHAP. XXVIII The Conclusion p. 46. II. Of the Ancient Government of England p. 49. III. Of Parliaments p. 57. IV. The Original of the four Terms of the Year p. 67. The Occasion of this Discourse p. 69. SECT I. Of the Terms in general p. 71. SECT II. Of the names of Terms ibid. SECT III. Of the Original of Terms or Law-days p. 73 SECT IV. Of the Times assigned to Law-matters call'd the Terms ibid. CHAP. I. Of Law-days among the Ancients p. 74. CHAP. II. Of Law-days amongst the Romans using choice days p. 75. CHAP. III. Of Law-days among the first Christians using all times alike p. 75. CHAP. IV. How Sunday came to be exempted p. 76. CHAP. V. How other Festival and Vacation-days were exempted ibid. CHAP. VI. That our Terms took their original from the Canon-law p. 77. CHAP. VII The Constitution of our Saxon Kings in this matter ibid. CHAP. VIII The Constitution of Canutus more particular p. 78. CHAP. IX The Constitution of Edw. the Confessor most material p. 79. CHAP. X. The Constitution of William the Conqueror p. 80. CHAP. XI What done by Will. Rufus Henry I. K. Stephen and Hen. II. p. 81. CHAP. XII The Terms laid out according to their ancient Laws p. 82. CHAP. XIII Easter-term p. 83. CHAP. XIV Trinity-term p. 84. CHAP. XV. Of Michaelmass-term according to the ancient Constitutions p. 85. CHAP. XVI The later Constitutions of the Terms p. 86. CHAP. XVII How Trinity term was alter'd and shortn'd p. 87. CHAP. XVIII How Michaelmass-term was abbreviated by Act of Parliament 16. Car. I. Cap. 6. p. 81. SECT V. Other considerations concerning Term-time ibid. CHAP. I. Why the High-Courts sit not in the afternoons p. 89. CHAP. II. Why they sit not at all some days p. 90. CHAP. III. Why some Law business may be done on days exempted p. 93. CHAP. IV. Why the end of Michaelmass-term is sometimes holden in Advent and of Hilary in Septuagesima c. p. 95. CHAP. V. Why Assizes be holden in Lent ibid. CHAP. VI. Of the Returns p. 96. CHAP. VII Of the Quarta dies post p. 97. CHAP. VIII Why there is so much Canon and Foreign Law us'd in this Discourse with an excursion into the original of our Laws p. 98. Appendix p. 104. V. An Apologie for Arch-bishop Abbot touching the death of Peter Hawkins the Keeper wounded in the Park at Bramsil July 24. 1621. p. 107. VI. An Answer to the said Apologie p. 111. VII Letters and Instruments relating to the killing of Hawkins by the A. B.
have been in use among our Saxons than it doth in all the rest of them and enforceth me thereby to the greater labour in examining it and discovering the contrary Touching the name Wardship I confess it carryeth a Saxon sound but from Norman God-fathers with whom Gard signifying the same that Ward doth with us and they bringing this custom into England our English Ancestors as in a multitude of other words changed the Norman G. into a W. and so made Ward for Gard and thereof Wardship for Gardship Yet to this day we call him that hath the custody of the ward after the Norman manner his Gardian not his Warden But I find neither Ward Wardship nor Warden in this sense in any Saxon Law Charter or Manuscript or any thing conducing to such signification The proof being in the affirmative lyeth on the other side yet doth not the Report produce one single Case Text or Precedent to maintain their assertion but like Pythagoras's Schollars resteth wholly upon Ipse dixit such and such have said it and I am now turn'd over to those Authors They have chosen a right good foreman 1 confess Mr. Selden of whom I say as she in Ovid Nomine in Hectoreo pallida semper eram But let us hear what he affirms according as the Report conceiveth him where the words be thus That Wardships were then viz. in the Saxon's time in use and not brought in by the Normans as Mr. Cambden in his Britt 179. nor by Henry III. as Randolph Hygden c. would perswade Vid. Selden's notes to Fortâ—scue 51. The Report says Vide and I say audi Mr. Selden to confute this opinion attributed to Rand. Hygden useth these words Neither is the custom of Wardship so new as R. Hygden in his Polycronicon or rather some others not understanding him ignorantly make it by supposing the beginning of it here under Hen. III. clearly Wardships were before or from the Normans at least Thus Mr. Selden There may be some amphiboly in the word before as doubtful whether it shall relate to the Normans or to Hen. III. but the occasion of his speech is to confute the opinion of them that did attribute the beginning of Wardships to Hen. III. saying that clearly they were before and tho' he determineth not how long before yet he concludeth that from the Normans at least citing Glanvill to shew they were in use in Hen. II's time and the Grand Custumer of Normandy to fetch them higher than so from the Normans who by the opinion of Berhault that writ the Commentary to that Custumary did first bring them into England Mr. Selden God be thanked is living to explain himself and I find by chance where he hath done it fully His words in the Titles of Honour be thus These kind of Military Fiess or Fees as we now have were not till the Normans with whom the customs of Wardship in Chivalry they began not under Hen. III. as most ignorantly R. Hygden the monk of Chester and Polydore tells you came into England And speaking by and by of Malcolm second King of Scotland who dyed about twenty two years before the Conquest he saith But in this Malcolme's time Wardships were not at all in England Thus Mr. Selden whom they so often press against me out of ambiguous places is clearly with me Their next Authority to prove Wardships to have been in use amongst the Saxons is saith the Report that amongst the priviledges granted by Edw. the Confessour to the Cinque Ports we meet with this That their heirs shall not be in Ward For this they cite Lambard's Perambulation of Kent p. 101. but I demand Oyer of the Record and I verily perswade my self Nul tiel Recorde nor in truth hath Lambard averr'd that there is Lambard's words be these The priviledges of these Ports being first granted by Edw. the Confessour and William the Conqueror and then confirm'd and encreased by William Rufus Hen. II. Rich. I. Hen. III. and King Edw. the first be great c. And in reciting some of these priviledges he tells us amongst the rest That they themselves the Inhabitants of the Cinque Ports be exempted from all payments of Subsidies and their Heirs freed from Wardship of body notwithstanding any Tenure He doth not say that this is in the Charter of Edward the Confessor but that it is among the priviledges granted by him and William the Conqueror and then confirm'd and encreas'd by the succeeding Kings Doubtless the word Subsidies here mention'd in this sense was not in use either in the Confessor or Conqueror's time nor in many years after till Taxes Aids and Tallages were grudged at and restrain'd I am therefore confident that this came in among the encreased priviledges afterward and it appeareth that Mr. Lambard was not perswaded that there was such a Charter of the Confessor's time and therefore waving it seeketh the original of the priviledges of the Cinque Ports no further than the Conqueror Why then do we father this upon the Confessor especially seeing the Charter of Anno 6. Edw. I. wherein all the Charters of the precedent Kings seem to be mention'd that of Edw. the Confessor is not spoken of The third assertion is that in the customs of Kent which are in Magna Charta of Tottil's Edition and in Lambard's Perambulation there is a rule for the Wardship of the heir in Gavelkind and that he shall not be married by the Lord. And those customs say of themselves that they were devant le Conqueste e en le Conqueste The words in Lambard be devant le Conqueste e en le Conquest e toutes houres ieskes en ca. That is before the Conquest and at the Conquest and ever since till now which word now relateth to the 2â— of Edw. I. there immediately before mention'd And to save the credit of the Author must be favourably understood to be meant of such customs as were in use either before the Conquest or at the Conquest or at any time since in the disjunctive not in the aggregative For if it be taken conjunctively then is it notoriously false for some things mention'd in it had their original under Hen. II. as the Grand Assize and Justices of Eyer whereof that of Eyer was not instituted till the Council or Parliament as we now call it of Nottingham An. Dom. 1176. viz. in the 22. or 23. of Hen. II. And for that of the Grand Assize it is expresly said in the customs that it was granted them by Hen. III Many other things there be as the Office of the Crowner the manner of Essoyning Writ of Cessavit c. which I suppose was never heard of before the Conquest But if you mark it the words in question viz. devant le Conquest c. stand in Lambard at a little more distance than the lines precedent as if himself conceiv'd them not to belong unto the
of a Fine as was common in all cases of Feodal Tenures This hath some shew of our Escuage and might well have taken that name from the manner of summons used in the Empire which was by erecting a post or pillar and hanging a Shield at the top thereof an Herald proclaiming that all who held in this manner should at such a day attend the Emperour in his voyage to Rome for taking the Crown of Italy or King of Romans which the Ligurine Poet thus expresseth Ligno suspenditur alte Erecto Clypeus tunc Praeco regius omnes Convocat a dominis feudalia jura tenentes c. as we have shew'd in our Glossary verbo Feudum He useth Clypeus for a Shield instead of Scutum and from this shield I say it might well be called Scutagium as also from the service performed in it cum hasta scuto Yet this summons was not called Schiltbannum but Heribannum that is indictio exercitus not indictio sâ—uti But to keep nearer the matter First our Saxons neither used the name nor the rules of the Norman Escuage for they called their going to war upon legal summons firdfare and utfare in Latin Expeditionem and Profectionem Secondly they were not tyed to any definite time of abode as for fourty days or more or less but as the law saith sÆ¿a a ðon ðearf sy for gemeneâ—â—â—re neode so as need shall require for common necessity Thirdly the mulct or forfeiture that the Tenant in Escuage incurred for not going forth upon that summons was uncertain among the Normans and us 'till the Parliament assign'd it but among the Saxons he that offended in Ferdwite that is in not going forth in the Expedition was certainly fin'd at 120 Fourthly whereas every Lord among us had the fine assess'd by Parliament of his own Tenant for the Lands holden of himself the King among the Saxons had the fine aforesaid of every delinquent whose Tenant or follower soever he were by all the Laws of the kingdom that is to say by the West-Saxon Law by the Mercian and by the Dane Law tho' otherwise they differ'd in their Heriots and many particular customs So that to talk of Escuage among the Saxons is without all colour or probability as I take it CHAP. XXIII No Feodal Escheate of Hereditary Lands among the Saxons EScheats of Eschoeir in French signifieth things coming accidentally as on the by or by chance The Fâ—odists therefore call them Caduca a cadendo and excadentias the black book of the Exchequer Escaetas excidentia and excadentia but among our Saxons I find no word to express them either properly or paraphrastically In our Law they be of two sorts Regal Escheats and Feodal Regal are those obventions and forfeitures which belong generally to Kings by the ancient right of their Crowns and supreme dignity Thus King David gave the lands of Mephibosheth accused of Treason unto Ziba tho' too hastily Feodal are those which accrue to every Feodal Lord as well as to the King by reason of his Seignory and of all the fruits of Tenure none so great as this if we may call it a fruit where the feud or tree it self resulteth back unto the Lord. Let us see therefore if we find any of these Feodal Escheats among the Saxons There is a shrewd text I confess in Canutus his Laws Qui fugiet à domino suo vel socio pro timiditate in expeditione navali vel terrestri perdat omne quod suum est suam ipsius vitam manus mittat dominus ad terram quam ei dederat si terram haereditariam habeat ipsa in manum Regis transeat Here is the appearance of a Tenure of a Feud of a Forfeiture and of an Escheat The Tenure lyeth between the Lord and his fugitive Vassal whom the Saxons and Germans called his Man we his Tenant The Feud in the Land quam dâ—mâ—nus â—i dederat The forfeiture in fugiendo in the Vassals running away And the Esâ—heat in the Lord 's seizing of the land manus mittat dominus in terram quam ei dederat Let the Lord take back the estate which he gave in the temporary feud But for the hereditary land he saith transeat non redeat in manum Regis All this is nothing in our case for I declared in the beginning that our question was fix'd upon such feuds as the Law of England taketh notice of at this day that is of feuds after they were become hereditary and perpetual not of those mention'd by Gerardus Niger which were temporary as at will of the Lord or for years or for life like them here intended by Canutus This very Law observeth the difference and discovereth also that feuds were not hereditary in his time and therefore giveth the feodal land being but a temporary estate back unto the Lord in whom the Reversion was by inheritance as a feodal right but giveth the hereditary Lands unto the King as a Regal Escheat for that there was no mean or intervenient Lord to claim them by any feodal tenure for that the hereditary lands among the Saxons otherwise called Bocland were holden of no body nor subject to any feodal service as we have often declared and could not therefore Escheat unto any feodal Lord. The Kentish custom of the father to the Bough and the son to the Plough suggesteth as much and sheweth also to have been the general use of England till the Conquerour introducing hereditary feuds put upon us therewith these greater feodal servitudes of Wardship Marriage Escheats c. So that the hereditary lands not being feodal in the Saxon's time nor the feodal lands hereditary there could then be no feodal Escheats among them And I take it to be considerable whether the land resumed by the Lord upon his Vassal's running away be properly an Escheat by the Law of Canutus or rather a penalty only impos'd in this particular case CHAP. XXIV Thaneland and Reveland what no marks of Tenure but distinctions of Land-holders THere is yet another assertion rather shewed than proved That the Thani majores or King's Thanes held by personal service of the King's person by Grand Serjanty or Knights-service in Capite And the reason following is that the land so held was in those times called Thane-land as land holden in Socage was called Reveland so frequently in Doomsday Haec terra fuit terra Regis Edwardi Thainland sed postea conversa est in Reveland Coke's Instit § 117. Thus the Report dischargeth it self upon my Lord Coke whose words be these It is to be observ'd that in the book of Doomsday land holden by Knights-service was called Thainland and land holden by Socage was called Reveland I reverence the opinion of that famous Lawyer with admiration but I suppose he speaketh not this ex tripode juridico For it is impossible that it and that which is before deliver'd out of the
another as it is to be seen in France it self When the Roman Emperors grew potent in Germany and the German Princes came to be Emperors the Germans generally forsook their ancient custom spoken of by Tacitus and received the Roman Law The rest of the Angli that remained in Germany and came not over into England made a Law about the year of our Lord 900. That it should be lawful for a Free-man to dispose his inheritance by Will as he pleased The Normans kept the old custom in part and left it in the other part They suffered him that had neither wife nor children if he were twenty year old to make a Will and bequeath his moveable goods as he listed either to or from his kindred So likewise if he were married and his wife dead Having children he could dispose but of a third part And so might man or woman of 16. years old But land which they according to the Civilians called immoveable goods no man amongst them might dispose of by his Will In some other parts of France as in Champain they disposed both moveable and immoveable that is goods and lands according to the Civil Law The Civil Law custom they called Lex Romana the other Lex Barbara Our Saxon Ancestors by direction of their Clergy who chiefly affected the Roman manners seem also to have observed the Civil Law in making of Wills both in substance for disposing Lands and Goods and much in the form and ceremony of making and publishing the same As Carolus Magnus in France disposed the Lands of his great dominions between his three sons Lewis Pepin and Charles by his last Will. So by his example King Ethelwulfus here divided his Lands by his Will between his three sons Aethelbald Aethelred and Aelfred King Aelfred in the like manner disposed both his Lands and Goods by his Will now extant And many other Saxons by their Wills in writing bequeathed Lands and Goods with their Bodies unto Monasteries That herein they followed the Civil Law is manifest by the Saxon Will of Birtrick and Elfâ—uith his wife made about the year 980. according to the manner of that time by them both jointly First it seemeth to be made in calatis Comitiis that is in an assembly called together for that purpose Then whereas the Civil Law requireth necessarily VII witnesses here were a dozen least it might be defective in that one was a woman and some other under age or Bond-men The disposition of Lands as well as of Goods is by the Civil Law and therefore the course is more solemn Which also this well observeth both for disposing Land and Goods and also for the solemnity of the course But most evidently it appeareth to be according to the Civil Law in that the man and his wife joyn both together in it which was neither in use nor resolv'd to be good till the Novel Constitution of Theodosius and Valentinian did authorise it After this Constitution that kind of Testament became so common that Marculfus who lived about the year 660. hath left unto us an especial formula or precedent of it as it was then in use in France And saith in it that it was ut Romanae Legis decrevit authoritas And concludeth it with an imprecation or curse against such as should violate it as doth also the Will of Birtrick With the like solemnity of witnesses eight in number besides a Lady did Elfere another Saxon before Birtrick bequeath the Town or Land of Snodland to the Church of S. Andrews Of the Probate of Wills or Testaments After the Will was thus composed the Roman use was to have the Testator and Witnesses to subscribe it then binding it up close with thred to seal it with their Seals which upon producing of it they or many of them were to view and acknowledge before the Praetor or Judge And then rupto lino the thred being cut it was opened and published and copies of it delivered to the parties under a Publick Seal the Original remaining in the publick Register The ancient manner of opening publishing or as we call it proving of Wills before the Magister Census is described by John Fabri But nearer to our purpose is that in the Formulae of Marculfus of a Will proved in a City or Corporation before the Magistrate there or of a Town before the Defensor Plebis For a Will by the Civil Law and the use of our neighbour Nations might be proved before divers Officers and in divers places We already mentioned the Praetor but Justiman the Emperor ordained that in Rome none should be opened save by the Magister Census In the Provinces by a Constitution of Theodosius the Rectores Provinciarum and where the access to them was uneasy there Donations and Wills made in Cities and Corporations might be exhibited and proved before Magistratus Municipales the Magistrates there in other Towns before the Defensor Plebis According to these two last are the formulae of Marculfus and another in Brissonius From these Constitutions of the Emperors grew the various manner of Probate of Wills amongst us in ancient time With the Magister Census being proper only to the City of Rome we have nothing to do But as we were once a Province of the Empire so our Ancestors received and held the manner of Provinces For the Rectores Provinciarum which with us were the Earls of the Counties had the cognisance or Probation of Wills as shall by and by appear So also had divers of our Magistratus Municipales Magistrates of Cities and Corporations As that which I am best acquainted with my Neighbours of Lenn Episcopi now Kings Lynn in Norfolk And instead of the Defensores Plebis in an ordinary Town the Lord of the Town or Mannor both had and hath that priviledge with us in divers places All this while there is no mention of any Ecclesiastical Person which we must now look into The fourth Council of Carthage ordained that Episcopus tuitionem testamentorum non suscipiat and this Canon Gratian has taken into the Body of the Canon Law whereto the Gloss saith Tuitionem id est apertionem sc coram eo non apperiantur sed coram Magistro Census C. de testam L. Consulta And tho' it addeth vel dicatur quod non sit advocatus ad tuendum testamentum yet that seemeth an idle interpretation for tho' Epiphanius maketh mention that Bishops in old time judged Causes yet it was never known that they pleaded Causes But it is apparent that the Clergy-men in those days took upon them to prove Wills even in Justinian's time who flourished An. Dom. 530. And therefore he prohibited them not only by a Constitution but also by a mulct of 50. pound weight of Gold saying Absurdum est namque si promiscuis actibus rerum turbentur officia
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
103. Camden in Bark-shire Selden in Eadmer p. 154. That Wardships were then in use and not brought in by the Normans as Camden in his Britt 178. Nor by Hen. III. as Randolph Higden in his Polichronicon and others not understanding him would perswade Vid. Seldens Notes on Fortescue 51. Among the priviledges granted by Edward the Confessor to the Cinque-ports we meet with this that their heirs shall shall not be in Ward Lambards Perambulat of Kent 101. And in the Customs of Kent which are in the Magna Charta of Tottels Edition and in Lambards Perambulation There is a Rule for the Wardship of the heir in Gavelkind and that he shall not be marryed by the Lord. And those Customs say of themselves that they were Devant le Conquest en le Conquest For the Antiquity of Wardships in England and Scotland see also Hect. Boet. lib. 11. Buchanan rerum Scot. lib. 6. and the Laws of Malcolm II. which prove the Antiquity of Wardships in Scotland and therefore in England before the Norman Conquest for in those times it is probable the Laws of both Nations did not much differ as for the times after it appears they did not by comparing their Regiam Majestatem and our Glanvil Neither is the bare conjecture of Sir Henry Spelman sufficient to take away the force of those Laws Vid. Spelman Glossar verbo Feudum Upon this amongst other reasons they did conclude That upon consideration of the Authority given and Grant thereupon made the reservation of the Tenure cannot be said to be Aliud So. a separate and distinct thing from the Authority of Granting the Land but rather included within it And that the Reservation of the Tenure though it be not Ipsa concessio the Grant it self yet it is Modus concessionis and a part of the Grant and that therefore the Authority being not pursued in that the whole Grant is void These were their Arguments for Tenures among the Saxons as they are set down in the Case it self drawn up and Printed by Order of the Lord Deputie Sir Henry Spelman has severally consider'd both the Truth and Force of them not strictly confining himself to their Reasons and Reflections but taking occasion from thence to write a very elaborate Treatise of the Nature and Original of Feuds and Tenures The two discourses Of the ancient Government of England and Of Parliaments are both of them publisht from the Original Manuscripts in the hands of Mr. Charles Spelman of Congham in Norfolk son of Sir John Spelman and Grandson to Sir Henry That concerning the Original of the four Terms was publisht in the Year 1684. from a very uncorrect and imperfect Copy which probably had been taken when the Author first wrote the Discourse The Original Manuscript with very many Additions and Corrections that Sir Henry afterwards made in it is preserv'd in the Bodleian Library from whence the Work is now printed entire The Apology for Arch-bishop Abbot by an unknown Author and the Answer to it by Sir Henry Spelman are in the posâ—ession of Mr. Henry Spelman son to Mr. Clement Spelman who was Sir Henry's youngest son both written with our Author 's own hand To this Answer he refers us in his Glossary under the title Muta Canum The Letters relating to the same subject are in a Collection of Original Papers and Records deliver'd to Mr. Wharton by Arch-bishop Sancroft and now in the hands of Mr. Châ—â—wel The Treatise of the Original of Testaments and Wills and his Icenia or the description of Norfolk are both publisht from the Author 's own Copies in the Bodleian Library The latter of these is not so compleat as he had intended to make it The Catalogue of the Earls Marshal of England and the Dissertation de Milite were evidently design'd for a part of his Glossary as appears from the manner of the Composition and from several passages in them But when the Papers were deliver'd to Sir William Dugdale for the publication of the second part of that Work these two it seems had been mislaid The account of the Earls Marshal is I fear imperfect in some places but will however be of good use towards a more accurate Catalogue of them The succession of the Family of Sharnburn is a peice of Antiquity that was exceedingly valu'd by Sir Henry Spelman as appears both from his Recommendation and from the use that he has made of it in some part of his Works Having met with a Copy in Mr. Ashmole's Museum at Oxford I thought it might not be improper to publish it among his Remains The Dialogue concerning the Coin of the Kingdom and the Catalogue of the Places of the Arch-bishops and Bishops of this Realm are in the possession of Mr. Charles Spelman The first is written in a hand not unlike Sir Henry Spelman's only somewhat less which if it was really his may have been occasion'd by his writing it while he was young For it appears to have been compos'd in the 36. of Elizabeth when Sir Henry was but about thirty three years of age The Catalogue was drawn up in the time of King James I. for the use of the then Arch-bishop of Canterbury as I gather from those words in the beginning written in a different hand Pro Domino Archiepiscopo Cantuar. I dare not positively affirm that either of these is Sir Henry Spelman's but the finding them among his other Papers and the accurate knowledge of our English affairs which appears in both incline me to believe that he was really the Author of them and for that reason they are printed upon this occasion This is all I have to say concerning the Posthumous Works of Sir Henry Spelman which I was willing to make publick for the Author's reputation and the service of the World THE LIFE OF Sir Henry Spelman Kt. HENRY SPELMAN was born at Congham a Town in Norfolk near Lynn He was descended from an ancient Family of that name who about Henry the III's time were seated in Hampshire but afterwards remov'd into Suffolk and from thence into Norfolk about 200. years since His Father's name was Henry Spelman Esq as I learn from a Pedigree of the Family under Sir Henry's own hand and not John as a late Writer has told us His Mother was Frances daughter of William Sanders of Ewel in Surrey Esq After his Education at School he was sent to Trinity Colledge in Cambridge before he was quite 15. years of Age and indeed as he himself complains before he was ripe for the University He had not stay'd there two years and a half but his Father dy'd and he was call'd home to assist his Mother in the management of the Family Afterwards when he came into the World and betook himself to Writing and the study of our Laws he found the want of University Education and condoles his misfortune in that particular in a Letter to his friend Mr. Richard
are all for profit taking what we find at market without enquiring from whence it came With this honest freedom does he censure his own times Not but then as well as now the studies to which he directs were pursu'd and encourag'd by Persons of the highest Stations in the Law and some of them were so far concern'd for the improvement of ancient Learning that they form'd themselves into a Society of Antiquaries for that purpose as we learn from Sir Henry's Introduction to his Law-terms With this design of understanding the foundation of our Laws Ecclesiastical as well as Civil he read over the Fathers Councils and as many of the middle-age Historians as he could meet with whether foreign or domestick Printed or Manuscript The roughness of style could not be very pleasing but that which chiefly discourag'd him was the great number of strange and obsolete words which are very hard to be understood and yet oftentimes are so considerable that the meaning of the whole sentence depends upon them However he went forward and where he met with any such word set it down in it's proper order with a distinct reference to the place till by degrees he had collected a variety of instances and by comparing the several passages where the same word occurr'd was able to give a tolerable conjecture at the true signification After he had made a considerable collection of this kind and observ'd how by this means the reading of the old Historians became every day more easie and pleasant he begun to digest his materials and from the several quotations to draw a judgement of the strict acceptation of each word in the respective Ages wherein it was used For he consider'd that what had been a discouragement to him would be so to others too and that a work of this nature would remove one of the greatest difficulties in the reading of our old Historians But tho' a number of instances gave him good satisfaction as to the several Words yet finding that many of our Laws since the Conquest are drawn from the Constitution of the Saxons and that many obsolete Terms in our Latin Historians must be of a pure Saxon Original he despair'd of ever accomplishing his design for want of understanding that Language At least he was certain that the knowledge of it must needs lead him to a clearer interpretation of many obscure passages and enable him throughout the whole Work to deliver his Opinion with a better assurance This Language at that time was not to be learnt without great difficulty Little assistance was to be expected from conversation in a study which few People of that Age ever minded Nor had he the directions either of Grammar or Dictionary as we at this day are accommodated with both very accurate in their kind However he set heartily about it and tho' I think he never perfectly conquer'd it yet under so many inconveniencies it is a greater wonder that he should attain so good a knowledge than that he should not make himself an absolute Master of it After he had made large Collections and got tolerable knowledge of the Saxon Tongue he resolv'd to go on with his undertaking but because he would not depend altogether upon his own Judgement he Printed a sheet or two for a Specimen whereby his Friends might be able to give him their opinion of the design He was encourag'd on all hands by the most Learned Persons of that Age at home by Archbishop Usher Bishop Williams then Lord Keeper Mr. Selden and Sir Robert Cotton abroad by Rigaltius Salmasius Piereschius and others as also Bignonius Meursius and Lindenbrogius whose assistances he very gratefully acknowledges in his Preface to the work Upon their encouragement he prepar'd part of it for the Press and offer'd the whole Copy to Mr. Bill the King's Printer He was very moderate in his demands desiring only five pound in consideration of his labour and that too to be paid him in Books But Mr. Bill absolutely refus'd to meddle with it knowing it to be upon a subject out of the common road and not likely to prove a saleable work So that Sir Henry was forc'd to carry it on at his own charge and in the year 1626. publisht the first part of it to the end of the Letter L. Why he went no farther I cannot tell nor has he so much as hinted to the cause of it either in his Preface or any part of his works that I know of Monsieur du Fresne who very much laments that he should not publish the second part himself fancies that his design of compiling the English Councils might be the occasion of his breaking off in the middle of his Glossary But 't is not likely that a Person of Sir Henry Spelman's settl'd Temper and Resolution should leave one work imperfect to make way for another I have heard it affirm'd by others that he stopped at the Letter M. because he had said somethings under Magna Charta and Magnum Consilium that his Friends were afraid might give offence But I believe the true reason was this Printing it at his own charge he must have laid out a considerable summ upon the first part and having a large Family there was no reason why he should venture as much more without the prospect of a quicker return than either the coldness of the Bookseller or the nature of the work gave him It fell out accordingly for eleven years after the greatest part of the Impression remain'd unsold till in 1637. two of the London Booksellers took it off his hands And tho' he should afterwards have had encouragement to go forward that was not a time to speak freely either of the King's Prerogative or the Liberties of the Subject both which would upon many occasions fall in his way Besides that the finishing the second part with the same copiousness and accuracy as he had done the first would have been too heavy a task for a Man of his great Age. The Author has told us in an Advertisement before the book that he chose to entitle his work Archaeologus rather than Glossarium as we commonly call it For a Glossary strictly speaking is no more than a bare explication of Words whereas This does more especially treat of Things and contains entire Discourses and Dissertations upon several of the heads therein mention'd For which reason it is not only to be consulted upon occasion like our common Lexicons but ought to be carefully perus'd and study'd as the greatest Treasure extant of the ancient Customs and Constitutions of England Before the Edition of 1626. he has this remarkable Dedication Deo Ecclesiae Literarum Reipub. Sub protestatione de addendo retrahendo corrigendo poliendo Prout opus fuerit consultius videbitur Deo clementissime annuente HENRICUS SPELMANNUS Omni supplex humilitate D. D. I have therefore set it down at large because in the Editions of 1664. and 1687. they have
Dom. 1627. With the Imprimatur of Sir John Bramston July 6. 1640. Many Instruments in this Collection are printed in the Second Volume of his Councils and it might be much improv'd from some Historians that have been publisht since his time In the Year 1641. there came out a Discourse de Sepultura by Sir Henry Spelman concerning the Fees for Burials 'T is likely that it was compos'd on occasion of his being one of the Commissioners for regulating the Fees in our Civil and Ecclesiastical Courts The Treatise consists of five sheets in 4 to so that I wonder why J. A. in his Preface to the Glossary should tell us that is was no more than two leaves His Latin Treatise entitled Aspilogia was next publish'd with Notes by Sir Edw. Bish Anno 1654. in Folio In this tho' it was one of his first Pieces he discourses with great variety of Learning concerning the Original and different kinds of those Marks of Honour since call'd Arms. He also drew up a scheme of the Abbreviations and such other obsolete forms of writing as occur in our old Manuscripts to facilitate the reading of ancient Books and Records There are several Copies of it in Manuscript as one in the Bodleian Library another in the Library of the late Dr. Plot a third in the possession of Mr. Worsley of Lincolns-Inn and 't is probable there may be more of em abroad in other hands Two other things he was concern'd in which I shall but just mention The Villare Anglicum or a view of the Towns in England publisht in the Year 1656. was collected By the appointment at the charge and for the use of that worthy Antiquary Sir Henry Spelman And Mr. Speed in his Description of Great Britain acknowledges that he receiv'd the account of Norfolk from the same Learned Knight As for his Posthumous Works which are publisht together on this occasion I shall give a more particular account of 'em in the Preface and in this place shall only add an instance or two of his Encouragement to Learning and Learned Men. It was he who first advis'd Dr. Wats to the study of Antiquities and when he had arriv'd to a good skill in those matters put him upon a new Edition of Matthew Paris The Doctor in the Preface to that excellent Work makes this grateful mention of his Friend and Patron Tertium Manuscriptum accommodavit Nobilis ille Doctissimusque Dominus Henricus Spelmannus Eques Auratus Eruditionis reconditioris Judicii acerrimi Vir nostrae Britanniae Lumen Gloriaque Amicus insupermeus singularis in studiis adjutor praecipuus qui me primus ad Antiquitates eruendas tam verbo quam exemplo aliquoties stimulavit erudivitque He was likewise a great Favourer of Sir William Dugdale who had been recommended to him by Sir Simon Archer a Gentleman of Warwickshire very well versed in Heraldry and the affairs of our own Nation At that time Mr. Dodsworth who was much assisted and encouraged by Sir Henry Spelman had got together a vast collection of Records relating to the Foundation of Monasteries in the Northern parts of England Sir Henry thought that these might be very well improv'd into a Monasticon Anglicanum and lest the design should miscarry by Mr. Dodsworth's death he prevail'd upon Mr. Dugdale to join him in so commendable a Work promising to communicate all his Transcripts of Foundation Charters belonging to several Monasteries in Norfolk and Suffolk For his further encouragement he recommended him to Thomas Earl of Arundel then Earl Marshal of England as a person very well qualify'd to serve the King in the Office of Arms. Accordingly upon his character of him seconded by the importunity of Sir Christopher Hatton he was settl'd in the Heralds-office which gave him an opportunity to fix in London and from the many assistances there to compile the laborious Volumes which he afterwards publisht His revival of the old Saxon Tongue ought to be reckon'd a good piece of service to the study of Antiquities He had found the excellent use of that Language in the whole course of his Studies and very much lamented the neglect of it both at home and abroad which was so general that he did not then know one Man in the world who perfectly knew it Paulatim says he ita exhalavit animam nobile illud Majorum nostrorum pervetustum idioma ut in universo quod sciam orbe ne unus hodie reperiatur qui hoc scite perfecteve calleat pauci quidem qui vel exoletas literas usquequaque noverint Hereupon he settl'd a Saxon Lecture in the University of Cambridge allowing 20l. per An. to Mr. Abraham Wheelock who tells us that upon his advice and encouragement he spent the best part of seven years in the study of that Language Magnam septennii quod effluxit partem consumpsi Saxonum nostrorum inquirendo Monumenta eorumque vetus idioma Veritatis pacis Catholicae magistram perquirendo ne nobilissimi Viri in his studiis monitoris mei honoratissimi 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 D. Henrici Spelmanni Antiquitatum nostrae gentis instauratoris eximii consilio defuissem This stipend was intended to be made perpetual but both He and his eldest Son dying in the compass of two years the Civil Wars breaking forth and the Estate being sequester'd the Family became uncapable of accomplishing that Design Nor indeed was that a Time for settlements of this kind when such a terrible storm threatn'd the Universities and the Revenues that belong'd to ' em After he came into business he was intimately acquainted with the most considerable Persons of that Age. He calls Mr. Camden his ancient Friend and how entire a Familiarity there was between him and Arch-bishop Usher we are inform'd from the Life and Letters of that Learned Primate To these I might add Sir Rob. Cotton Mr. Selden Olaus Wormius with Peireschius Meursius Beignonius and others of great note both at home and abroad whom he himself occasionally mentions as the chief Encouragers of his Glossary Upon the whole matter as his Loyalty Wisdom and Experience in publick Affairs would sufficiently recommend him to the great States-men of his time so his eminent Piety and Learning must needs make him highly esteem'd among Divines and Scholars He had eight Children four Sons and four Daughters His eldest Son the heir of his Studies as he calls him was John Spelman Esq a Scholar and a Gentleman who had great assurances of favour and encouragement from King Charles I. This good Prince sent for Sir Henry Spelman and offer'd him the Mastership of Suttons Hospital with some other things in consideration of his good services both to Church and State But after his humble thanks to his Majesty he told him that he was very old and had one foot in the grave and that it would be a much greater obligation upon him if his
For which purpose Conradus Salicus a French Emperour but of German descent going to Rome about fourty five years before the time of our King Edgar viz. sub An. Dom. 915. to fetch his Crown from Pope John X. made a Constitution upon the petition of his Souldiers That filii or aviatici the sons or if no Sons were living the Nephews or Grandsons as they call them of some of them should succeed in the Feud of their Father See the Constitution in the beginning of the fifth book of Feuds But Gerardus noteth that this law settled not the Feud upon the eldest Son or any other Son of the Feudatarie particularly but left it in the Lord's election to please himself with which of them he would After this Feuds were continued in divers places by several increments to the third fourth fifth sixth and seventh generation and sometime for want of lineal issue collaterally to the brother as Gerardus testifieth but whether by some positive law or by the munificence of the Lords he doth not tell us nor when or by whom they were made perpetual and hereditary tho' he confesseth that at last they grew to be extended in infinitum and then they began to be settled upon the eldest Son who formerly had no preheminence above a younger brother But while they stood sometimes produced in this manner by the indulgence of Princes to the third fourth or fifth generation c. some men of learning have concluded them to be hereditary as tho' there were no medium between a limitation how far so ever extended and infinitum To pass by that let us now go on in examination when and how Feuds became Hereditary Some suggest a shew of such a matter under the two Othones German Emperours who succeeded one the other about the year 973. But to rest upon the common and received opinion which we shall hereafter more at large declare the truth is that when Hugh Capet usurped the Kingdom of France againgst the Carolinges he to fortifie himself and to draw all the Nobility of France to support his Faction about the year 987. granted to them in the year 988. that whereas till then they enjoyed their Feuds and Honors but for life or at pleasure of their Princes they should from thenceforth for ever hold them to them and their heirs in Feudal manner by the Ceremony of Homage and oath of Fealty And that he would accordingly maintain them therein as they supported him and his heirs in the Crown of France which they joyfully accepted This was a fair direction for William of Normandy whom we call the Conquerour how to secure himself of this his new acquired Kingdom of England and he pretermitted not to take the advantage of it For with as great diligence as providence he presently transfer'd his Country-customs into England as the Black book of the Chequer witnesseth and amongst them as after shall be made perspicuous this new French custom of making Feuds hereditary not regarding the former use of our Saxon Ancestors who like all other Nations save the French continued till that time their Feuds and Tenures either arbitrary or in some definite limitation according to the ancient manner of the Germans receiv'd generally throughout Europe For by the multitude of their Colonies and transmigrations into all the chiefest parts thereof they carried with them such Feodal rights as were then in use amongst them and planting those rites and customs in those several Countries where they settled themselves did by that means make all those several Countries to hold a general conformitie in their Feuds and Military customs So by the Longobards they were carried into Italy by the Saliques into the Eastern parts of France by the Franks into the West part thereof by the Saxons into this our Britain by their neighbours the Western Goths who communicated with the Germans in manners laws and customs into Spain and by the Eastern Goths into Greece it self and the Eastern parts of Europe c. These I say carried with them into the parts of Europe where they settled such ancient Feudal customs as at the time of their transmigration were in use among them But the more prevalent and more generally receiv'd customs were those that were in use or taken up in the time of Conradus the Emperour and when Feuds became hereditary for on them especially is the Feudal Law grounded and composed tho' enlarg'd oftentimes by Constitutions of the Emperours and spread abroad into divers Nations by their example countenance or authority Wherein the Court of Milan was chiefly followed in rebus judicatis as appeareth by Duarenus and Merula but reserving unto every Nation their peculiar rights and customs For it was generally received into every Kingdom and then conceived to be the most absolute law for supporting the Royal estate preserving union confirming peace and suppressing robberies incendiaries and rebellions I conclude with Cujacius who upon the above-cited passages of Gerardus Niger saith Quam aliam Feudorum originem quaerimus His veluti incrementis paulatim feuda constituta sunt quae post Conradum usus recepit ut transirent ad liberos mares in infinitum c. The Military and Lay-Feuds being thus advanced from an arbitrary condition to become perpetual and hereditary did now in ordinary account leave their former name of Beneficia which were only temporary for years or life unto the Livings of the Clergy and retained to themselves the proper name of Feuds whereby they were produced to be perpetual and hereditary Cujacius therefore speaking of them both saith Feudum differt a beneficio quod hoc temporaneum fuit illud perpetuum And treating in another place of these beneficiarii and temporarii possessores he saith further Iisdem postea câ—pit concedi feudum in perpetuum quod est verum proprium Feudum Concluding in a third place that Propria Feudi natura haec est ut sit perpetua So that Cassineus in the Feuds of Burgundy saith that Omne Feudum quocunque modo acquisitum fit haereditarium cum successione sit redactum ad instar Allodialium That all Feuds by what means soever they be acquired are made hereditary in so much as by the continual succession of the children into the Feuds of their Fathers the Feuds are now brought to be like Allodial or patrimonial inheritances Thus Feudum which at first was but a tottering possession ad voluntatem Domini growing at length to be an irrevocable estate descending by many successions from son to son became at last to be an absolute inheritance and thereupon the words themselves Feudum and Haereditas in common use of speech Quem penes arbitrium est jus norma loquendi to be voces convertibiles and by a fair metonymia each to signifie other For as Horace further saith Verborum vetus interit aetas Et juvenum ritu florent modo nata vigentque Aptly
Christian King caused his own Laws to be put in writing about the year 605. as other Western Nations in an age or two before had done and as Bede saith wrote them in the Saxon tongue The first Charter if I shall so call it or writing touching lands and privileges was as a MS. of Canterbury reporteth made by Withredus King of Kent in the year 694. and as that Charter it self witnesseth was appointed to be kept in the Church of our Saviour at Canterbury as a precedent for posterity to imitate and tho' it appeareth not there in what language it was written yet I presume it was in the same with their Law which was the Saxon tongue For there be two copies of it extant in Latin so differing the one from the other as thereby they both appear to be translations For proof thereof the one of them useth the words Charta and Chartula which Ingulfus affirmeth to be brought in hither by the Normans that is above three hundred years after the time of this Charter of Withred's The other Latin copy termeth it Scriptum not Chartam and the Saxons themselves used neither of those words but called such writings in Latin Chirographos not Chartas as Ingulfus there also testifieth So that it hereby appeareth that the Prototype or first pattern of Charters which the Saxons imitated was not in Latin but in Saxon. Secondly it is therefore to be presumed and very strongly that tho' this Charter of Beorredus remaineth to us by a Latin copy yet the original it self like a thousand others was in the Saxon tongue Nor could it in all probability be otherwise for at the very time when it was made viz. in anno 868. learning was so generally subverted throughout England by the barbarous Danes that King Alfred who began to reign within four years after the date thereof saith Paucissimi fuerunt cis Humbrum qui vel preces suas communes sermone Anglico intelligere potuerant vel scriptum aliquod è Latino transferre Tam sane pauci fuerunt ut ne unum quidem recordari possum ex australi parte Thamesis tum cum ego regnare occaeperam But as their original Charters were in the Saxon tongue so in the Leiger-books in which they are preserved to us they are often set down in the Saxon and then because the books themselves are in Latin they are there translated also into Latin and often times set down in the Latin only without the Saxon as in the book of Ramsey-Abby which having no Charters in it in the Saxon tongue the Author of it saith that himself had there translated them all into Latin after that that Abby in the days of King Stephen had recovered her liberty Yet I deny not that Latin Charters might be often used by their latter Clergy-men when learning which in Beorred's time was utterly subverted began at last to recover life again Thirdly I conceive that the word feudum or feodum was not in use in Beorredus's days viz. anno 868. For proof whereof we are to consider the infancy youth and full age of the Feodal Law for according to these several times the Feodal Lands had their several denominations First they were called Munera then Beneficia and lastly Feuda as is aforesaid Marculfus who collected the Formulas or Precedents as we call them of Charters and Instruments of the time he lived in which was under Clodovaeus II. King of France about the year 660. maketh mention in his first book of Munera and in his second of Beneficia but no where of Feuda and he who a hundred years or more after him collected the Formula's incerti Autoris speaketh divers times of Beneficium but never nameth Feudum for that this term came not into use till afterwards when these Beneficia began to be granted in perpetuity Beneficium Regis saith Bignonius postea Feudum dictum est And in another place he saith Beneficii nomine ea praedia dicta sunt quae Feuda posteritas dixit initio namque vita accipientis finiebantur As if he should say they were called Beneficia when they were granted only for life of the Grantee but were called Feuda when they began to be granted in perpetuity and not before Cujacius therefore speaking of Feudatarii which word came into use with Feudum for Relatives mutuo se ponunt auferunt saith that when Actores custodesque proediorum nostrorum temporarii perpetui esse caeperunt c. when those who had the use and ordering of our Lands for a certain time began to enjoy them in perpetuity and yet retained their Latin name of Homines our Men they grew then also to be called after new and forreign names Vassalli Leudes and Feudatarii by the Princes and great Noblemen who choosed rather to grant them lands in perpetuity in consideration that they should do them military service And he saith that these names were first brought into Italy by the German Princes Where and particularly in Milan as Merula reporteth the Feodal Laws and Customs have had their original and from thence been propagated throughout Europe By this it appeareth that the words Feudum and Feudatarii were not in use till that the word Munera was grown obsolete Nor afterward till Beneficia leaving to be temporary or but for life became to be perpetual possessions which as I have often said was not long before the Conquest So that the word Feudum could not be in use in Beorredus's time who lived two hundred years before Fourthly Tho' the word Feudum were in the original Charter of Beorredus yet doth it not prove that our Feuds were then in use For call them Beneficia or call them Feuda certain it is that neither the one nor the other were then hereditary or perpetual but either temporary or for life only which at length begat the difference between Feuda and Beneficia for Beneficia in a restrained sense began to signifie no more than an estate for life in which sense it resteth at this day in our Clergy-men's Livings called Benefices and the word Feuda grew to be understood only of such Beneficia or Benefices as were perpetual and hereditary To return from whence we digressed I suppose it now appeareth sufficiently how some Feodal words are crept into Charters and writings of Saxon date and I think I may conclude that the words before mentioned Tenura tenentes tenementa tenere or tenendum in a feodal sense or feodum it self were not in use among them Much less Tenure in Capite Tenure by Knight-service Tenure in Socage or Frank-Almoign tho' the like services were performed to the Saxon Lordships by their Thanes and Theodens their Socmen or Husbandmen and their Beads-men or Clergy-men by way of contract for the lands received from them as were after the Conquest to the Norman Lordships by way of Tenure for lands holden of them The Neapolitan and Sicilian Constitutions which
had their original from Princes of Norman lineage do ..... the Conquest here in England make mention of tenens tenere tenementum and tenere de Rege in Capite but whether the Normans carried these terms into Italy when they Conquer'd Naples about the year 1031. or brought them from thence into Normandy I cannot determine Certain it is that from the Normans they came to us in England for being not met with before in any authentick Author we presently after the Conquest begin to hear of them even about the third or fourth year of the Conqueror's reign as appeareth by his Charter of Emendationes Legum in the Red book of the Exchequer f. 162. b. and in Lambard's Archaionomia CHAP. IV. Of Tenures in Capite more particularly TOuching Tenures therefore in Capite I think I may boldly say that here were none in England in the Saxons time after the manner now in use among us First For that their Feodal Lands as we have shewed were not descendible before the Conquest For tho' there were hlaâ—ord and ðane amongst the Saxons that is Lord and Thane or Servitour whom beyond the Seas they called Seigneur Vassall alias Vassallum Dominum Clientem while their feuds were arbitrable or but for years or life yet grew not the words of tenure into use till that Feuds became descendable to posterities and thereby obliged the whole succession of heirs to depend and hold upon their Capital Lords by the services imposed at the creation of that Feud Secondly The word in Capite is like a Relative in Logick which being a supreme degree of it self implieth some other degrees to be under it as Tenant in medio or Tenant in imo or both viz. Tenant in Capite Tenant in menalty and Tenant Paravale or at least Tenant in Capite and Tenant Paravale which inferiour Tenants could not be in the Saxons time for that the granting of Feuds in perpetuity out of which the under-Tenancies must be deduced was as I have said not yet in use Thirdly to hold in Capite is of two sorts The one general which is of the King as Caput regni caput generalissimum omnium Feodorum the fountain whence all feuds and tenures have their main original The other special or subaltern which is of a particular subject as Caput feudi or terrae illius so called because he was the first that created and granted that feud or land in that manner of tenure wherein it standeth and is therefore at this day so to be understood by the ordinary words in our Deeds of tenendum de Capitalibus Dominis feodi illius c. signifying that the lands so granted since the statute of Quia Emptores terrarum must now be holden mediately or immediately of him or his heirs or assigns that was Caput Feodi the first that created or granted that Feud in that tenure who thereupon was called Capitalis Dominus Caput terrae illius among the Feudists Capitanus feudi illius And the Grantee and his heirs were said to be Tenants in Capite because they held immediately of him that first granted that feud or land in that manner Hereupon David I. King of Scots and Earl of Huntingdon here in England was in right of his Earldom in the time of King Henry I. said to be Capud terrae de Crancfeld Craule post regem Angliae And Roger de Molbray about the same time or shortly after made a grant in these words Roger de Molbray omnibus hominibus fidelibus suis Normannis Anglis salutem Sciatis quod ego concessi Roberto de Ardenna Clerico amico meo totum nemus de Bedericheslea cum omnibus antiquis libertatibus consuetudinibus ejusdem nemoris ad tenendum de me in Capite haeredibus meis ita libere quiete c. sicut ego unquam c. The Deed is without date but note that the direction of it is Omnibus hominibus fidelibus suis Normannis Anglis which implieth that it was made before Henry II's time for he being of Anjou in France and bringing in French-men with him altered then very properly the directions of Charters into Hominibus fidelibus suis Francis Anglis Yet I find the same direction tho' more improperly to be some time used under the Norman Kings Qu. So likewise as before W. Marshall the great Earl of Pembrock in a Charter of his useth these words about the beginning of Henry III's time as I take it Nisi fortè forinseca tenementa tenueris de me in Capite And Mat. Paris in An. 1250. making mention of one G. a Knight saith that Rex memoratus Hen. III. cuidam militi tenenti de Ecclesia S. Albani in Capite c. warennam concessit where the words tenenti de Ecclesia S. Albani in Capite do signifie that some Abbat of the Church of St. Alban first created and granted that Feud Having thus in general manner prepared my way to the ensuing discourse I shall now God willing by the patience of them whom it most concerneth examine such particular assertions as are produced in the Report either to prove our Tenures and Feuds with their dependancies to have been in use among the Saxons or to disprove what I have affirmed in my Glossary or in the Chapters here precedent and will first shew therein as followeth CHAP. V. What degrees and distinction of persons were among the Saxons and of what condition their lands were FOr the better understanding of our discourse it is necessary that we should shew what degrees and distinctions of persons were among the Saxons and of what condition their lands were Touching their persons they are by themselves divided in this manner Eorle and Ceorl and Ãegn and Ãeoden In Latin Comes and Villanus Tainus unus alius singuli pro modo suo That is to say the Earl and the Husbandman the Thane of the greater sort called the King's Thane and the Thane of the lesser sort called the Theoden or Vnder-thane More degrees the Saxons had not in their Laity and among these must all the tenures lye that were in use with them As for their bond-men whom they called Theowes and Esnes they were not counted members of that Common-wealth but parcels of their Master's goods and substance Touching lands among the Saxons they were of two sorts Bocland and Folcland Bocland signifieth terram codicillarem or librariam Charter-lands for the Saxons called a Deed or Charter an bec i. e. librum a book and this properly was their terra haereditaria for it commonly carried with it the absolute inheritance and propriety of the Land and was therefore preserved in writing and possess'd by the Thanes and Nobler sort as proedium nobile liberum immune a servitiis vulgaribus servilibus In which respect the Thanes themselves were also called liberales as appeareth by Canute's Forest-laws Art 1. 3.
seqq a name not well agreeing with Feodal servitudes But it seemeth by divers Abby-books that some Estates for life which we call Frank tenements were also put in writing especially among the latter Saxons Yet were not these accounted bocland for they were laden commonly with many feodal and ministerial services whereas bocland as I said was free from all services not holden of any Lord the very same that Allodium descendable according to the common course of Nations and of Nature unto all the sons and therefore called Gavelkind not restrain'd to the eldest son as feodal lands were not at first but devisable also by will and thereupon called Terrae testamentales as the Thane that possessed them was said to be testamento dignus Folcland was terra vulgi the land of the vulgar people who had no estate therein but held the same under such rents and services as were accustomed or agreed of at the will only of their Lord the Thane and it was therefore not put in writing but accounted proedium rusticum ignobile But both the greater and the lesser Thanes which possessed Bocland or hereditary lands divided them according to the proportion of their estates into two sorts i. e. into Inland and Outland The Inland was that which lay next or most convenient for the Lord's Mansion-house as within the view thereof and therefore they kept that part in their own hands for supportation of their family and Hospitality The Normans afterwards called these lands terras dominicales the Demains or Lord's lands The Germans terras indominicatas lands in the Lord 's own use The Feudists terras curtiles or intra curtem lands appropriate to the Court or House of the Lord. Outland was that which lay beyond or out from among the Inlands or Demeans and was not granted out to any Tenant hereditarily but like our Copy-holds of ancient time having their original from thence meerly at the pleasure of the Lord. Cujacius speaking of this kind of land calleth it proprium feudum that is to say such land as was properly assigned for Feodal lands Proprium feudum est saith he extra curtem consistit in praediis As if he should say That land properly is a Feud or Feudal land which lyeth without the Demains of the Mannour and consisteth in land not in houses We now call this Outland the Tenants land or the Tenancy and so it is translated out of Biritrick's will in the Saxon tongue This Outland they subdivided into two parts whereof one part they disposed among such as attended on their persons either in war or peace called Theodens or lesser Thanes after the manner of Knights Fees but much differing from them of our time as by that which followeth shall appear The other part they allotted to their Husbandmen whom they termed Ceorls that is Carles or Churles And of them we shall speak farther by and by when we consider all the degrees aforesaid beginning with the Earl CHAP. VI. Of Earls among our Saxons AN Earl in the signification of Comes was not originally a degree of dignity as it is with us at this day but of Office and Judicature in some City or portion of the Country circumscribed anciently with the bounds of the Bishoprick of that Diocess for that the Bishop and the Earl then sat together in one Court and heard jointly the causes of Church and Common-wealth as they yet do in Parliament But in process of time the Earl grew to have the government commonly of the chief City and Castle of his Territory and withal a third part of the King's profits arising by the Courts of Justice Fines Forfeitures Escheats c. annexed to the office of his Earldom Yet all this not otherwise than at the pleasure of the King which commonly was upon good behaviour and but during life at most This is apparent by the severe injunction of King Alfred the Great labouring to plant literature and knowledge amongst the ignorant Earls and Sheriffs of his Kingdom imposed upon them That they should forthwith in all diligence apply themselves to the study of wisdom and knowledge or else forgoe their Office Herewith saith Asser Menevensis who lived at that time and was great with the King the Earls and Sheriffs were so affrighted that they rather choose insuetam disciplinam quam laboriose discere quam potestatum ministeria dimittere that is To go at last to the School of knowledge how painful soever rather than to lose their offices of Authority and degrees of Honour which Alfred there also declareth that they had not by Inheritance but by God's gift and his Dei saith he dono meo sapientium ministeria gradus usurpatis This is manifest by divers other authorities and examples in my Glossary in verbo Comes as the Reader if he please may there see Some conjecture that Deira and Bernicia in Northumberland and Mercia in the midst of England were Feudal and hereditary Earldoms in the Saxon times Those of Northumberland presently after their first arrival under Hengistus about the year 447. that of Mercia by the gift of Alfred the Great about the year 900. to Ethelredus a man of power in way of marriage with his daughter Ethelfleda but for ought I see it is neither proved by the succession of those Earldoms nor our Authors of Antiquity For my own part I think it not strange that there was not at the entry of the Saxons a Feudal and Hereditary Earldom in all Christendom As for this our Britain the misery of it then was such as it rather seemed an Anarchy and Chaos than in any form of Government Little better even in Alfred's days through the fury of the Danes tho' he at last subdued them for his time How soever three or four examples in five hundred years before the Conquest differing from the common use is no inference to overthrow it especially in times unsettled and tumultuous The noble Earldom of Arundel in our days of peace differeth in constitution from all the other Earldoms of England yet that impeacheth not their common manner of succession Loyseau and Pasquier learned Frenchmen speaking of the Dukes and Earls of France which England ordinarily followeth and sometimes too near the heels justifie at large what I have said shewing the Dukes and Earls in the Roman Empire from whose example others every where were derived were like the Proconsuls and Presidents of Provinces simple Officers who for their entertainment had nothing else but certain rights and customs raised from the people which we in England called Tertium denarium And that the Dukes and Earls of France were Officers in like manner but had the Seigneurie of their territory annexed to their Office so that they were Officers and Vassals both at once that is to say Officers by way of Judicature and Vassals whom we call Feodal tenants for their Seignories of Dukedoms and
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
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.
health is there in letting off a Cross-bow wherein neither Head Hand nor Foot no not the nimblest member of the Body the Eye stirreth all that while Fifthly the Canon hath St saepius detentus fuerit if he make a Life or Occupation of it which his Lordship did not Burchard saith detectus and with more reason and I suppose his Lordship useth it very temperately yet the Apologist in his Fifth Section insinuateth that his Lordship doth it often Sixthly whereas he saith that the Canon speaketh against Clamosa venatio not quieta or modesta I find no such word or distinction in the Canon yet is there no doubt that if the Deer be not kill'd out of hand but in recovering him there must be both Clamor and Venatio Thus he counteth the mouth of the Canon to be stopt Yet because it is good to make sure work with so dangerous an object now he setteth Law upon Law the Common against the Canon or at least the Statute which indeed hath crack'd a great sort of Canons That by the Statute of Henry VIII 35. ca. 16. No Canon is in force in England which was not in use or is contrary or derogatory to the Laws or Statutes of this Realm or to the Prerogatives of the Royal Crown Of which sort he saith this is one and gives his reasons for in Charta de Foresta Arch-bishops and Bishops by name have liberty to Hunt and 13. Ric. II. ca. 13. A Clergy-man who hath 10l. by the year may keep Grey-hounds to Hunt The name of Charta de Foresta and also of Hunting is Clero lachrimabile nomen For the first breach that ever was made into the freedom of Clergy-men and which gave passage to all that followed rose from the occasion of Clergy-mens Hunting in Forests which Henry II. greatly discontented with never rested till by assent of the Pope's Legate Hugo Petro-leonis he obtained a Law in the twenty first year of his reign An. Dom. 1157. To convent them therefore before secular Judges and there to punish them But to our purpose There is no contradiction as I take it between the Canon de Clerico Venatore and Charta or Statutum de Foresta The Canon doth say They shall not Hunt and the Statute doth not say they shall The words of the Statute ca. 17. are thus An Arch-bishop Bishop Earl or Baron coming to us upon our command and passing through our Forest Liccat ei capere unam bestiam vel duas per visum Forestarii si praesens fuerit sin autem faciat cornare ne videatur furtum facere Here is no word of Hunting but that they may take a Deer and this they will say cannot be but either with Dogs or Engine and so consequently by Hunting But the very words of Charta de Foresta seem to shew that it was not meant the Bishop should be an Huntsman for that it admitteth him not to have so much skill in Hunting as to wind an Horn tho' that by no Law or Canon be forbidden to him And therefore saith not Corniat ipse but Faciat corniare let him cause an Horn to be blown c. I conceive the meaning to be that the Bishops and Barons shall each of them take as they may the Barons by Hunting if they will in their own Persons the Bishops as they may by the hands of their Officers and Servants It is a common phrase in all old Charters that the Bishops shall have Sac and Soc Toll and Team c. i. e. cognisance of plea suit of Court toll and such other customs shall we intend that he must take these in his own Person No it was not Henry the third's meaning when he granted the Charter of the Forest to break the Laws of the Church for at the same time in Magna Charta ca. 1. he granteth that the Church shall have Omnia jura sua integra libertates suas illaesas which could not possibly be if by his Charter he changed the Canons of the Church especially in matters of Doctrine and Conscience as when the Church teacheth that a Clerk may not be a Huntsman for him to say that he shall be Doubtless if he would the Clergy would not then accept it In the person of a Bishop there be three distinct Faculties his Spiritual Function wherein he is a Bishop his Legal Ability wherein he is a Lay-man and hath liberty to contract c. and his Temporal Dignity wherein he is a Baron and Peer of the Realm and participateth their priviledges I could put cases wherein every of these may be seen severed from the other but I should then wander from my matter Only I present them thus Anatomy'd that it may appear what portion the Church had in them what the Common-wealth and what the King that so it may also the better appear how the Laws both of the Church and Kingdom are to be applyed unto them respectively When therefore the King granted Temporal lands unto them tho' they took them as Lay-Barons and in their Temporal Capacity yet might they not otherwise use them than might stand with their Spiritual Function no more than when he granted Ecclesiastical possessions to a Lay-man the Grantee might otherwise use them than as a Lay-man For example it was a common thing in old time that the King granted Churches to Lay-men by the name of Ecclesiam de Dale and Ecclesiam de Sale yet it was never intended that the Grantee tho' he had the Churches to order and dispose should contrary to his Vocation meddle with the Divine Service but present his Clerk only So in like manner when the King granted to Clergy-men Chaces Parks and Warrens it was not intended that contrary to the rules of their Profession and Laws of the Church they should or might become Hunters and Foresters My long stay upon this point is a preparative to an answer to the next which is the Statute of Ric. II. being in the negative That no Priest nor other Clerk not advanced to 10l. a year shall have or keep any Greyhound nor other Dog to Hunt nor they shall not use Ferrets Hayes Nets Hare-pipes nor Cords nor other Engines for to take and destroy Deer Hares nor Conies c. upon pain of one years imprisonment The Statute I say is in the Negative and saith that none under 10l. a year shall keep but saith not in the Affirmative That it shall be lawful for them that have 10l. a year to keep c. I should therefore think that this Statute doth not discharge a Priest having 10l. a year and using Hunting against the Canon-Law no more than the Statute of Vsury forbidding a Man to take above 10l. loan for an 100 l giveth him liberty to take that 10l. or doth discharge him against the Canons of Vsury Touching his inference that Linwood speaketh not one word against Hunting simply by Clergy-men but against their using it in places restrained it is true for the Text of
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
Rex ipsum Henr. Sharnburn singulari quadam gratia favore amplectens primo fecit eum militem deinde le Provost Marshall postea Vice-Admirallum Angliae misitque cum ad mare navi viris armis fortiter munita ut perpulsaret a finibus nostris perfugaret piratos praedones praecipue ex Gallica gente qui eo tempore plurimum praedabantur in oris Angliae In quo negotio viriliter quidem ipse Henr. se gerebat quamvis sibi inutiliter successerit Nam post multa a se praeclare ac valide gesta tandem forte incidit in Admirallum Franciae cum quo ferocissime crudelissime habuit pugnam in qua plurimi ex utraque parte occisi fuerunt quorum percipuus erat ipse dominus Henricus Sharnburn sic finierunt dies ejus Praedictus autem Thomas Sharnburn filius haeres dicti domini Henr. Sharnburn jam tunc aetate XVIII annorum erat cum patre suo in navi in praedicta pugna ubi ingens insolitus bombardarum sonitus aures suas ita obtudit ut semper postea per totam vitam surdus remanserit Serviebat tamen Illustrissimae Principi dominae Mariae filiae primogenitae Regis Henrici VIII ex ejus familia elegit sibi uxorem nomine Elizabetham Atwell unam ex ancillis dictae principis ex qua procreavit unum filium duas filias qui omnes in infantia aut puerili aetate mortui sunt Ipsa autem Elizabetha uxor dicti Thomae Sharnburn in partu unius dictorum liberorum spiritum spiravit extremum XIII die Feb. Anno Regis Henrici VIII XXX sepultus est apud Sharnburn Sed praedictus Thomas brevi tempore post accepit aliam conjugem nomine Blitham Brampton filiam Johannis Brampton de Brampton in Comit. Norff. Armigeri quae peperit sibi quinque filios duas filias quorum primus erat Christopherus Sharnburn qui natus fuit XII die Oct. Anno Regni Henr. VIII XXX V. An. Dom. 1542. de quo postea Secundus erat Antonius Sharnburn qui obiit eodem die quo natus fuit viz. XXIV Feb. anno Regis Henrici VIII XXXV 1543. Tertius erat Dorothea Sharnburn quae nata fuit XX. die Nov. anno Henrici VIII XXXVII 1545. Quae Dorothea primo nupta fuit Johanni Plumstede de Plumstede in Comit. Norff. generoso post mortem dicti Thomae nupsit cuidam Roberto Nichols habuit exitum ex utroque marito Quartus erat Henr. Sharnburn qui natus fuit IV. die Apr. anno Regis Edwardi VI. primo An. Dom. 1547. Quintus erat Thomas Sharnburn qui natus fuit XXIII die Sept. Edwardi VI. secundo qui obiit infantulus in Ingoldsthorp apud nutricem suam Sextus autem fuit Anna Sharnburn quae nata erat III. die Novemb. anno Edwardi VI. tertio obiit in infantia apud Dersyngham cum nutrice sua Septimus erat Antonius Sharnburn qui ortns fuit XX. die Mar. anno Regni Edwardi VI. quinto An. Dom. 155â— qui obiit etiam tertio die Jan. An. Dom. 16â—4 anno aetatis suae LIII quia celibatam degebat vitam nullum ex se 〈◊〉 exitum Praedictus autem Thomas Sharnburn pater praedictorum liberorum in senectute sua saepe vehementer gravabatur ex dolore lapidis in â—enibus vesica qui morbus ita vires suas naturales debilitavit mortem approximavit ut XXII die Mar. An. Dom. 1559. diem clausit extremum Et sepultus est in Capella Ecclesiae de Sharnburn atque praedicta Blitha uxor ejus supervixit eum habuit sibi pro termino vitae suae totum manerium de Sharnburn nupsitque cuidam Lanceloto Smalperd generoso cum quo degebat pluribus annis supervixit eum per decem annos ita ut omnes dies ipsius Blithae possunt computari ad octoginta sex vel septem annos obiit autem primo die Nov. An. Dom. 1602. sepulta est in Capella Ecclesiae de Sharnburn loco ubi Thomas Sharnburn maritus suus sepultus fuit Modo dicendum est de Christophero Sharnburn primo filio praedictorum Thomae Blithae qui postquam ad virilem aetatem pervenerat duxit in uxorem Annam Veere ex progenie Comit. Oxon. consanguineam Thomae Ducis Norff. ex qua procreavit Franciscum Sharnburn de quo postea Et praedictus Christopherus obiit sexto die Julii An. Dom. 1576. anno aetatis suae tricesimo quarto sepultus in inferiori parte Capellae Ecclesiae de Sharnbâ—rn prope parietem FINIS A DIALOGUE Concerning the COIN of the KINGDOM Particularly What great Treasures were exhausted from England by the usurp't Supremacie of Rome Viandante Selvaggio VIand ..... God amend them But to return to the point that led us into this digression The excessive price of Meat I pray let us now leave foreign Countries to look a little into our own and tell me what you think to be the cause that the prices of things do so far exceed the proportion of ancient times For I have seen in an old Evidence that a good Cow was in those days sold for ten or twelve shillings and at this day I dare say such an one will cost thirty or fourty shillings and so likewise of other things Selv. How sore soever Victualers Inn-keepers Taverns and such like gripe their Guests and Travellers yet it is worth the examining whether the prices of things be in any notable excess greater than in ancient times they have been For if we consider the value of the shilling then with the value of the shilling now we shall find that their shilling was in value three of ours For then out of an ounce of Silver they coin'd but sive groats and after because mony was scarce in the Land the King caused ten groats to be made of an ounce So that by this means there grew to be twice as much mony in the Land as was afore and yet never the more of Silver After in the 36. of Henr. VIII it was enhaunc'd to four shillings the ounce and now lastly unto five So that now our five shillings neither weigheth nor is more worth in Silver than their sive groats of ancient time And then it followeth by necessary consequence that the Cow that you speak of to be sold for ten shillings may now be well worth thirty shillings and yet no difference at all in their prices For admit that the custom used in the time of the Conqueror and since also as appeareth by Doomsday-book c. had continu'd until this day to receive and pay all summs of mony according unto the weight and touch without respect of the Stamp or Coin then was the price of your ten shilling Cow six ounces of Silver and ours of thirty shillings is so likewise and not one peny more sic de caeteris But admit again that the Queen's Majesty should reduce her Coin
to the former Rate of sive groats to the ounce do you think that things would then be sold for so many shillings or pounds as they now be I warrant you No. Then is it the unstable value of our former Coins that so much deceiveth a great number For look into such things as have always retain'd an uniform content and you shall find little difference between our and the former times in giving one of those things for another For at this day you may buy a Cow for as few Sheep as you could then and a Horse for as few Cows The Land that was then lett with us in Norfolk for 8d. or 10d. the acre and now for eight groats or three shillings was in those days also let for a coumbe of Barley and yet will not now be hired at so great a Rate Viand You have answer'd me beyond my expectation but yet not fully satisfy'd me For tho' I allow you these proportions yet there remaineth a great diversitie For I have read that in old time a quarter of Wheat was sold at London for 2s. a fat Ox for a noble a fat Sheep for 6d. or 8d. half a dozen of Pigeons for a peny a fat Goose for 2d. a Pig for a peny and other things after that Rate And yet I grant that a Man in letting or selling his Land for Corn Cattel and such like or ware for ware might in those days have as much as he can get now Selv. The time you speak of was about the 10 th of Edw. III. and the like hath been at other times also And when the cause hereof is well consider'd you shall find another right good reason why things should be sold for more mony now than they were then and yet no whit at all dearer and that is the plenty and abundance of plate and mony which at this day is to be found in England more than ever was in time past For it is not our Commodities that be grown dearer but Gold and Silver are become more common and of less estimation than they were wont Insomuch that whereas Plate was dainty in Great-men's Houses it ruffleth now even at the meanest Tables and mony is so little respected as we will give great store thereof for a small Commodity Like as in the days of Solomon Silver was so plentiful as it was nothing esteem'd no it was holden so base a mettal as Solomon would not make one vessel thereof no not for his own service much less for the Temple of God Yet afterward it became so scarce as when Joash undertook to repair the Temple he was driven to tax the people for it that thereby he might have wherewith to pay the work-men and whereon to make the holy Vessels So King Edw. III. having with effusion of much Treasure ended his Scottish Wars and determin'd to begin afresh with France practised such means to recover mony to supply these charges as he got so much into his hands that Writers report it was very scant and hard to be come by through the whole Realm And hereupon proceeded the cheapness that you speak of Men were constrained to give a great deal of ware for a little mony because they could have no other chaffer for their Commodities But from these particular Contingents you must not raise general Consequents for in that sort I can shew unto you that things were much dearer before the time you speak of than they are now As in 22. Edw. I. a quarter of Wheat was sold for 30s. So in the time of Richard I. all things were so exceeding dear for three or four years together that a quarter of Wheat was then sold for 18 â— 8 â— a strange price if you consider the alay of mony then currant and this was almost 400. years agoe Also in the year 1289. Edw. I. 17. Wheat was ordinarily sold for 2s. the bushel and continued at that price almost fourty years together rising oftentimes to 10s. the bushel and sometimes to a mark and above as in the year 1317. and in these days other things bare price accordingly I could put you many Examples more if these sufficed not but sure I am of mind that all occurrents rightly weigh'd things be little or nothing dearer than in ancient time Viand You say sore unto me if you make it apparent that mony were so plentiful as you affirm it For my own part I am sure I have little enough Selv. And I too but that is not the matter For what store of sap soever the tree hath yet many spriggs and leaves do wither away for want thereof The great ones have it I warrant you and that ultra modum but to our matter Two things are the causes thereof It is brought in more plentifully than in ancient times and carryed out more sparingly Brought in more plentifully in respect of greater traffick that we have had within these latter years even to all places in the World by which we have utter'd our own Commodities at the dearest and fetcht the foreign from the original places which with far greater charge we were wont to buy at second hand Viand Yea marry Sir the less we have of some of that trafficking the better I think for England For by this means they carry from us our good Corn Wooll Cloth Copper Lead Tinn and such like rich Commodities and the sustenance of our Countrey and return us for them excess of Lawn Camrick Plums Spice Suckets and other lascivious trumpery whereby effeminate delicacie is crept in amongst us and our warlike reputation put in peril to be lost This kind of traffick may well be term'd Glauci Diomedis permutatio Doth the wealth and mony you speak of come into England by this means Selv. Nothing less There be other good merchandise enough as Pitch Tar Iron Copper Deal Madder Woad Cutchaneale and such like and yet those you speak of are in some measure necessary But by our traffick into foreign Countries tho' we many times bring home light and frivolous toys yet they are often accompanied with Gold and Silver both in Coin and Bullion Besides you know that the Treasure according to my capacity is infinite which in these later years hath been unshipp'd in England Viand True but goeth it not out as merrily think you as it cometh in or not so fast as it did in times past Selv. That is the other point to be consider'd of and I know by certain speeches utter'd in the last Parliament that her Majestie 's occasions to disperse it are exceeding great and urgent yet a principal part thereof runneth as in a circle up and down the Land And tho' she sendeth much beyond the Seas for entertainment of her Bands and Garisons and executing of her other Royal purposes yet doth she therein but as all her Renown'd Progenitors have done before her For neither England nor any other Realm in Europe have ever wanted this kind of issue But the reasons