consent of the Bishops and Barons For in his Charter whereby he divideth the Court-Christian from the Temporal he saith thus Sciatis quod Episcopales Leges communi Concilio consilio Archiepiscoporum meorum caeterorum Episcoporum Abbatum omnium Principum regni mei emendandas judicavi And this seemeth to be that same Commune Concilium totius Regni whereby he made the Laws he speaketh of in his Charter of the great Establishment aforesaid William Rufus in An. 1094. calls Episcopos Abbates cunctosque Regni Principes to a Council at Rochingheham 5. Id. Mar. Henry I. de communi Concilio gentis Anglorum saith Matthew Paris posuit Dunelmensem Episcopum in vinculis Where Gentis Anglorum might be extended to such a Parlament as we use at this day if the use of that time had born it But Eadmere speaking of a Great Counsel holden a little after at Lambith calleth it Concilium Magnatum utriusque Ordinis excluding plainly the Commons And to that effect are also all the other Councils of his time But our later Chroniclers following Polydore as it seemeth for they cite no Author do affirm that Henry I. in the sixteenth year of his reign held the first Parlament of the three Estates The truth whereof I have taken some pains to examine but can find nothing to make it good Eadmerus who flourisht at that very time writing particularly of this Council or Assembly saith XIII Kal. Aprilis factus est conventus Episcoporum Abbatum Principum totius Regni apud Serberiam cogente eos illuc sanctione Regis Henrici I. And among other causes handled there he sheweth this to be the principal viz. That the King being to go into Normandy and not knowing how God might dispose of him he desir'd that the succession might be confirm'd on his son William Whereupon saith Eadmer omnes Principes facti sunt homines ipsius Willielmi fide Sacramento confirmati Florentius Wigorniensis who liv'd at that time and dy'd about two years after reporteth it to the same effect Conventio Optimatum Baronum totius Angliae apud Sealesbiriam 14. Cal. Apr. facta est qui in praesentia Regis Henrici homagium filio suo Gulielmo fecerunt fidelitatem ei juraverunt Here is no mention of the Commons whom in likelyhood they should not have pretermitted if they had been there assembled contrary to the usual custom of those times Nor doth any succeeding Author that I can find once touch upon it I conceive there might a mistaking grow by Polydore or some other for that many of the Commons if not all were at this time generally sworn to Prince William as well as the Barons were and as after in the year 1127. to Maud his daughter Prince William being then dead But I no where find in all the Councils or Parlaments if you so will call them of this time any mention made of any other than the Bishops Barons and great Persons of the Realm And so likewise in the time of King Stephen The first alteration that I meet with is in the twenty second year of Hen. II. where Benedict Abbas saith Circa festum S. Pauli venit Dominus Rex usque ad Northampton magnum ibi celebravit Concilium de Statutis regni sui coram Episcopis Comitibus Baronibus terrae suae per consilium Militum Hominum suorum Here Militum Hominum suorum extendeth beyond the Barons and agreeth with the Charter of King John as after shall appear Yet Hoveden speaking of this Council doth not mention them but only termeth it Magnum Concilium But there hapn'd about this time a notable alteration in the Common-wealth For the great Lords and owners of Towns which before manur'd their lands by Tenants at Will began now generally to grant them Estates in fee and thereby to make a great multitude of Free-holders more than had been Who by reason of their several interests and being not so absolutely ty'd unto their Lords as in former time began now to be a more eminent part in the Common-wealth and more to be respected therefore in making Laws to bind them and their Inheritance But the words Militum Hominum suorum imply such as held of the King in Capite not per Baroniam and therefore were no Barons yet such as by right of their Tenure ought to have some voice or Patron to speak for them in the Councils of the Kingdom For holding of the King as the Barons did they could not be patronized under them And doubtless they were not many at this time tho' much encreased since the making of Domesdei book where those few that were then are mentioned And it may be the word Hominum here doth signify those that serv'd for Burrough-Towns holden of the King for it must be understood of Tenants not of Servants To grope no further in this darkness The first certain light that I discover for the form of our Parliaments at this day is that which riseth fourty years after in the Magna Charta of King John The words whereof I will recite at large as they stand not only in Matthew Paris but also in the Red-Book of the Exchequer with some little difference hapning in the writing Et Civitas Londinensis habeat omnes antiquas libertates liberas consuetudines suas tam per terras quam per aquas Praetereà volumus concedimus quod omnes aliae Civitates Burgi Villae Barones de quinque Portubus omnes Portus habeant omnes libertates omnes liberas consuetudines suas Et ad habendum commune Consilium Regni de Auxiliis assidendis aliter quam in tribus casibus praedictis de Scutagiis assidendis summoneri faciemus Archiepiscopos Episcopos Abbates Comites Majores Barones Regni sigillatim per literas nostras Et praetereà faciemus summoneri in generali per Vice-Comites Ballivos nostros omnes alias qui in Capite tenent de nobis ad certum diem scil ad terminum 40. dierum ad minus ad certum locum in omnibus literis summonitionis illius causam summonitionis illius exponemus Et sic facta summonitione negotium procedat ad diem assignatum secundum consilium eorum qui praesentes fuerint quamvis non omnes summoniti venerint Here is laid forth the Members the Matter and the Manner of summoning of a Common Council of the Kingdom which as it seemeth was not yet in the Records of State call'd a Parlament The Members are of three sorts First the arch-Arch-Bishops Bishops Abbots Earls and the Greater Barons of the Kingdom so call'd to distinguish them from the Lesser Barons which were the Lords of Mannours Secondly Those here before mention'd by Bened. Abbas to be call'd to Clarenden that held of the King in Capite whom I take to be now the Knights of the Shire And thirdly those of Cities Burroughs and
Thanes we must consider them the more diligently first in the quality of their persons secondly in the tenure of their lands A Thane was in like manner as the Earl not properly a title of dignity but of service so called in the Saxon of â—enian servire and in Latin Minister à ministrando But as there be many degrees of service some of greater estimation and some of less so those that served the King in places of eminency either in Court or Common-wealth were called Thani majores and Thani Regis and those that served under them in like manner as under Dukes Earls and other great Officers of the Kingdom and also under Bishops Abbats and the greater Prelates of the Church were called Thani minores or the lesser Thanes And as the titles of honourable office and service in Dukes Earls c. became at length to be made hereditary so this of Thanes like our titles of Noblemen and Gentlemen descended at last with their Fathers land upon their Children and posterity And continued thus till after the Conquest as appears by some Writs and Charters of the Conquerour Buchanan describing the quality of their persons calleth them Praefectos regionum sive Nomarchas Quaestores rerum capitalium Governours of places principal Ministers of justice Chequer men Sheriffs c. But we will take them as the Saxons themselves describe them in the place before mentioned where it thus followeth gif Ceorl geðeah ê§ he hefde fullice fif hyda agenes lande c. if a churl or husbandman thrive so that he had fully five hydes of his own land a Church and a Kitchin a Bell-house and a Gate-house a seat and a several office in the King's Hall then he was from thenceforth worthy of the rights of a Thane meaning as I understand it he was then one of the greater Thanes or King's Thanes For the lesser Thane is by and by described also in that which followeth viz. And gif ðegen geðeah c. And if a Thane himself so prospered that he served the King and ridd upon his message as others of his Court and then had a Thane i. e. an under or lesser Thane that followed him which had five hydes or plough-land chargeable to the King's expedition and served his Lord in the King's Court and had gone thrice upon his errand to the King he this under-Thane might take an oath instead of his Lord and at any great need supply the place of his Lord. And if a Thane did so thrive as he became an Earl he had the rights of an Earl And a Merchant might become a Thane c. Mr. Lambard conceiveth this place to discover but three degrees among the Saxons viz. Earls Thanes and Ceorls not admitting the under-Thane to be a several degree The words seem otherwise and the Saxon division before recited maketh four degrees Earl Ceorl Thegn and Theoden or under Thane Some therefore distinguish Thanes into majores and minores some into majores minores otherwise called mediocres and minimi whom Canutus in his Forest-laws calleth Minuti and Tinemen I dare not venture to define them particularly but will rest upon the Saxon division first mentioned which I find to be pursued by Norman terms in the laws of Edw. Confess and William Conq. delivered by Ingulfus viz. Count Baron Valvasor and Villain Where he placeth Count instead of Earl Baron instead of Kings-Thane Valvasor instead of Theoden or lesser Thane and lastly Villain instead of Churl As though the division both of the Saxon and Norman times did hold analogy one with the other and both of them with ours at this day viz. of Earls and Barons of the Kingdom including the greater Nobility Barons of Towns and Mannours including the lesser Nobility or Gentry and that of our Yeomen including the Husbandmen To return to the Thanes This Saxon passage hath per transennam shew'd unto us not only the quality of their person but the nature of their land whereupon all our Question doth depend And true it is it sheweth that both they and it were subject to military service call'd in Latin Expeditio in Saxon utfare and ferdgung and in foreign Nations Heribannum that is the calling forth of an Army And it appeareth by an ancient MS. of Saxon Laws in the Kings Library that the Thanes were not only tyed to this but to many other services to be done unto the King and that in respect of their land which notwithstanding bred no Tenure in Capite or by Knights-service The words be these Tbani lex est ut sit dignus rectitudine testamenti sui ut tria faciat pro terra sua Expeditionem Burghbotam Brugbotam de multis terris majus Landirectum Exurgit ad Bannum Regis sicut est Deorhege ad mansionem regiam Sceorpum in hosticum custodiam maris capitis pacis Elmesfeoh Ciricsetum i. e. pecunia Eleemosynae Ciricsceatum aliae res Thus in English The Law touching a Thane is That he have power to make a will and that in respect of his land he shall do three things viz. Military Expedition Repairing of Castles and mending of Bridges and for more lands to do more Land-duties To go forth upon the King's summons to the enclosing of his Park and Mansion-house and to ..... into the enemies Lands and to defend the Sea his own head and the peace to pay Alms-monies Church-seeds Church-shots and other things What is there in all this to shew either a Tenure in capite or by Knight-service It will be said that the Military Expediton and Warding of the Sea against enemies imply a tenure by Knight-service and that those and the other services being to be performed to the King and upon the King's summons shew a Tenure in capite And no doubt so would it be for lands given in this manner by the King since the Conquest But I conceive that none of all this riseth out of any Tenure or Feodal reservation made by the Saxon Kings in granting these lands or by any particular contract agreed of by the Thane or Subject in accepting them but out of a fundamental law or custom of the Kingdom as ancient as the Kingdom it self whereby all the land of the whole Kingdom was oblig'd to this Trinodae necessitati of military Expedition and building or repairing of Castles and Bridges so that if this made a tenure by Knight-service in Capite in the Thane Lands then must it follow also that all the land of the Kingdom was likewise holden by Knights-service in capite for it was wholly tyed to those three services as appeareth in the Council of Eanham Cap. 22. 23 where they are commanded to be yearly done And by the laws of Canutus Cap. 10. 62. where they are appointed to be done as necessity requireth And also by the law of King Ethelred who about the thirtieth year of his reign ordain'd that
that none should be put to further trouble unless the King 's own necessity or the common good of the Kingdom required it Therefore the Bishops Earls Sheriffs Heretoches or Marshals of Armies Trithingreves Leidgreves Lieutenants Hundredors Aldermen Magistrates Reves Barons Vavasors Thungreves and other Lords of land must be all diligently attending at these Assemblies lest that the lewdness of offenders the misdemeanor Gravionum i. of Sheriffs and the ordinary corruption of Judges escaping unpunished make a miserable spoil of the people First let the laws of true Christianity which we call the Ecclesiastical be fully executed with due satisfaction then let the pleas concerning the King be dealt with and lastly those between party and party and whomsoever the Church-Synod shall find at variance let them either make an accord between them in love or sequester them by their sentence of excommunication c. Whereby it appeareth that Ecclesiastical causes were at that time under the cognizance of this Court But I take them to be such Ecclesiastical causes as were grounded upon the Ecclesiastical laws made by the Kings themselves for the government of the Church for many such there were almost in every King's time and not for matters rising out of the Roman Canons which haply were determinable only before the Bishop and his Ministers To proceed Before they entered into any causes as it is commanded in the Laws of Canutus which we mentioned par 2. ca. 17. the Bishop to use the term of our time which from hence taketh the original gave a solemn charge unto the people touching Ecclesiastical matters opening unto them the rights and reverence of the Church and their duty therein towards God and the King according to the word of God and Divinity Then the Alderman in like manner related unto them the Laws of the land and their duty towards God the King and Common-wealth according to the rule and tenure thereof Of all which because I find a notable precedent in a Synodal Edict made by Carolus Calvus Emperour and King of France in Concil Carissiaco An. Dom. 856. I will here add it not to shew that our Saxons took their form of government from the French but that both the French and they as brethren descending from one parent the German kept the rights and laws of their natural Country Episcopi quinque in suis parochiis Missi in illorum Missaticis Comitesque in eorum Comitatibus pariter placita teneant quo omnes Reipub. Ministri Vassi Dominici omnesque quicunque vel quorumcunque homines in iisdem parochiis Comitatibus sine ulla personaram acceptione excusatione aut dilatione conveniant c. That is The Bishops in their parishes or Diocesses and the Justices Itinerant or Aldermen in their Circuits and the Earls in their Counties shall hold their pleas together whereunto all Ministers and Officers of the Common-wealth all the King's Barons and all other whatsoever they be or whose Tenants soever they be within the same parishes or Counties without any respect of persons excuse or delay shall assemble together And the Bishop of that parish or Diocess having briefly noted sentences touching the matter out of the Evangelists Apostles and Prophets shall read them to the people and also the decrees Apostolick and Canons of the Church and in open and plain terms shall instruct them all what manner and how great a sin it is to violate or spoil the Church and what and how great pennance and what merciless and severe punishment it requireth with other accustomed necessary and profitable admonishments The Aldermen also or Justices shall note down such sentences of law as they call to mind and shall publish unto them the Constitutions of us and our predecessors Kings and Emperours gathered together touching this matter And the Bishops by the Authority of God and the Apostles and the Aldermen or Justices and Earls under the penalty of the King's Laws shall with all the care they can prohibit every man of the Kingdom from making any prey or spoil of the Church c. OF PARLIAMENTS WHEN States are departed from their original Constitution and that original by tract of time worn out of memory the succeeding Ages viewing what is past by the present conceive the former to have been like to that they live in and framing thereupon erroneous propositions do likewise make thereon erroneous inferences and Conclusions I would not pry too boldly into this ark of secrets but having seen more Parliaments miscarry yea suffer shipwrack within these sixteen years past than in many hundred heretofore I desire for my understanding's sake to take a view of the beginning and nature of Parliaments not meddling with them of our time which may displease both Court and Country but with those of old which now are like the siege of Troy matters only of story and discourse Because none shall go beyond me in this argument I will begin with the foundation of Kingdoms which of necessity must be more ancient than Parliaments for that a Parliament is the grand Council of the Kingdom assembled at the commandment of the King for advice in matters of State Our first labour is then to see what this Grand-Council was originally It is confest on all hands that the King is universal Lord of his whole Territories and that no man possesseth any part thereof but deriv'd from him either mediately or immediately This derivation thus proceeded The King in the beginning divided his whole territory into two parts one to be manured by his own Tenants and Husbandmen then call'd Socmen For the Kings of England us'd in those days to stock their grounds themselves like the Kings of Israel and by the profits thereof especially to maintain their Hospitality their Court and Estate having in every Mannour Officers and Servants for that purpose This part was Sacrum Patrimonium the inseperable inheritance of the Crown call'd in Doomsday Terra Regis and in Law the Ancient Demaine And because it belong'd to the husbandry of the King all that manur'd or held any part of this land were said to be Tenants in Socage and might not be drawn into the wars of which nature as touching their Tenure they continue at this day The other part of his whole territory he portioned out to Military men which tho' the other was the more profitable yet this was always held for the more honourable and therefore so divided this among his Nobles and chief servants and followers for supportation in his wars and Royal Estate To some in greater measure to others in less according to their merit and qualities Provinces to Dukes Counties to Earls Castles and Signiories unto Barons rendring unto him not ex pacto vel condicto for that was but cautela superabundans but of common right and by the Law of Nations for so I may term the Feodal-law then to be in our Western Orb all Feodal duties and services due from the Donees and their
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.
Surrey 23. King Edgar's Charter of donation of certain Thane-lands 19. Another Charter granted by him to the Monastery of Hide near Winchester 20. By whose advice his Laws were made 61. King Edward the elder how he propos'd his Laws 61. The first that prohibited Law business on Festivals 77. King Edward the Confessor's Charter of donation to Thola 20. Several priviledges granted to the Cinque-Ports 26. His Laws by whom collected 61. His Constitution touching Festivals 79. Edward Earl of Norfolk and Marshal of England 168. Dyed in his minority ibid. Edwin son of Othulf gave certain lands to Arch-bishop Odo 29. Elfere a Saxon bequeath'd Snodland to the Church of St. Andrews 128. Publish'd his Will before Odo Arch-bishop of Canterbury c. 130. Elfstane Bishop of Rochester 130. Elfsy Priest of Croyden 130. Ellingham 161. Elmham 150. Erpingham 151. Erpingham Tho. Commissioner for executing the Office of Earl Marshal of England 169. Escheats the signification of the word 37. No feodal Escheats among the Saxons 37 38. Escuage what in the Empire 36. Neither its name nor rules us'd by the Saxons 37. Essoyning the manner of it not in use before the Conquest 27. King Ethelbald's Charter to the Monks of Croyland 22. Ethelbert the first Christian King of the Saxons 8. He causes his Laws to be put in writing ibid. He took somewhat from the Roman law 102 Etheldreda daughter of K. Alfred her dowry 8. King Etheldred ordain'd every eight Hides of land to find a man for the naval Expedition 17. His Charter of donation to Aethelwold 19. Another Charter granted by him to his Thane Sealwyne ibid. King Ethelstane whom he consulted in making his Laws 61. King Ethelwulfs Charter of priviledges 23. He divided his lands by Will among his three sons 128. Euricus King of the Goths 102. Exauctoratio Militis 185. Expeditio what it signifies in Latin 17. F Fakenham 150. Fasti or Law days among the Romans why so nam d. 72. Seldom two Fasti together 75. Fasti proprie ibid. Fasti intercisi ibid. Fasti Comitiales ibid. All the Fasti not apply'd to Judicature ibid. Fealty the definition of it 35. No Fealty but for a fee. 36. What manner of Fealty among the Saxons ibid. Felbrig 152. Felewell 161. Feodal words none among the Saxons 7 8 9. Feorme what it signifies in the Saxon tongue 15 Ferdwite 37. Festa majora vel principalia 91. Festivals how exempted from Law days 76. The differences of them 91. The Festivals of St. Peter and Paul 92. Of St. George 93. Of Gun-powder Treason ibid. A Feud what it is 1. It s general and particular definition 2. Feuds among the Jews ibid. Among the Gauls 3 Their original 4. Made perpetual and hereditary 5. When and how they became so ibid. Especially in England ibid. The difference between them and Benefices 6 9. The great growth of them ibid. No proper Feuds before the Conquest ibid. Feudal-law generally receiv'd in every Kingdom 5. It s youth infancy and full age 9. Where it had its original ibid. Feudatarii 9. Feudum militare nobile 4. Rusticum ignobile ibid. Feuda majora regalia ibid. The word Feudum or Feodum not us'd in K. Beorredus's days 9. Fideles who 4. Fidelity what 59. Fines for Licence of alienation 33. The Thane-lands free from them ibid. Not in use among the Saxons 34. Fitz-Alan Jo. Lord Maltravers Marshal of England 168. Fitz-Osborn Will. Lord Marshal to King William the Conquerour 165. Flegg 154. Flitcham 145. Flitchamburrough 52 145. Folcland what 12. Not alienated without licence 33 34. Free from homage 35. Ford-Park 110. Forests belong to the King alone 118. Subjects can have 'em only in custody ibid. Fouldage 162. Franc-almoin 2 7. Frank-tenements 12. Freeborgs or Tithings 51. Frekenham 153. G Garbulsham 158. Gavelkind what and why so call'd 12. Observ'd throughout all Kent 43. At first the general Law of all Nations ibid. Germans their Customs and Tenures carry'd into several Countries 5. They receiv'd the Roman Law 127. Gey-wood 143. Gilbert the third son of William the King's Marshal 166. Made Marshal of England ibid. Kill'd in a Tournament ibid. Gimmingham 152. Goths carry the German Laws into Spain Greece c. 5. They were the first that put their Laws in writing 102. Trusted Priests with the passing of wills 130 Government the ancient Government of England 49. c. 53. Grand-days in France and England 92. Grand Serjeanty 2. Grantesmale Hugh Marshal under K. William I. 165. Greeks from whom they had much of their ancient Rites 74 127. Gresham 152. Gressenhall 150. Grey Rad. de exauctoratur 185. Guthrun the Dane 61 77. H Hales 156. Harkela Andr. de exauctoratur 185. Harleston ibid. Hartlebury-park 110. Hawkins Pet Keeper of Bramsil-park wounded by Arch-bishop Abbot 109 c. Hengham 157. King Henry I. imprison'd the Bishop of Durham 62. His Constitution about Festivals and Law-days 81. King Henry II. ratify'd the Laws of Edw. the Confess and Will the Conquerour 81. Henry Bishop of Winchester conven'd K. Stephen to his Synod 132. Heribannum what 17. Heriots paid after the death of great Men. 31 32 To whom forgiven 32. The difference between them and Reliefs 32 33. By whom and when first ordain'd 32. What the word Heriot signifies ibid. Heriots and Reliefs issuing out of the same lands 33. No badge of lands held by Knight-service ibid. Heydon 151. High Courts see Court of Justice Hikifricus Pugil quidam Norfolciensis 138. Hilary-Term its ancient bounds 82 83. The end of it sometimes held in Septuagesima 95. Hockwold 161. Holkham 149. Holland Tho Marshal of England 168. Holland Tho. Earl of Kent Duke of Norfolk 169. Made Earl Marshal of England ibid. Holland Tho. Farl Marshal of England during the minority of John Mowbray 165. Holme in Norfolk 147 152 Homage by whom first instituted 5. Feodal homage 34. Of two sorts ibid. When begun in France and England ibid. The reason of it 34 35. Who are to do it 35. Usual in Soccage-tenure 35. As well a personal as a praedial duty ibid. Homines commendati 35. Hominium homagium what 34. Homagium ligeum ibid Feodale aut praediale ibid. Hoveden Roger when he wrote 31. Howard Sir John Kt. created Duke of Norfolk and Earl Marshal of England 17â— Slain in Bosworth-field ibid. Howard Tho. the son of the former Earl of Surrey 170. Imprison'd in the Tower ibid. Defeated the Scotch under K. Henry VII ibid Made Lord Treasurer of England and restor'd to his fathers dignities ibid. Kill'd James IV. K. of Scotland in battel ib. Sent Ambassadour into France ibid. Made Vice-Roy of England ibid. Where he dy'd ibid. Howard Tho. the fourth Duke of Norfolk of that name and Earl Marshal of England 1â—1 Howard Tho. the Grand-son of the former Earl of Arundel and Surrey ibid. The first Earl of England ibid. Made Earl Marshal for life ibid. Hugh Bishop of Coventry exercis'd the Sheriffs place 116. Excommunicated ibid. De Humâ—z
Reliquiae Spelmannianae THE POSTHUMOUS WORKS OF Sir HENRY SPELMAN Kt. Relating to the LAWS and ANTIQUITIES OF ENGLAND Publish'd from the ORIGINAL MANUSCRIPTS With the LIFE of the AUTHOR Sine dubio domus Jurisconsulti est totius oraculum Civitatis Cicero OXFORD Printed at the THEATER for Awnsham and John Churchill at the Black-Swan in Pater-Noster-Row LONDON 1698. Imprimatur JOH MEARE VICE-CAN OXON Jan. 17. 1698. TO THE Most Reverend Father in God THOMAS LORD ARCH-BISHOP OF CANTERBURY PRIMATE of All ENGLAND And METROPOLITAN And one of his Majesty's most Honourable Privy Council MY LORD I BEG leave to lay before your Grace these Posthumous Discourses of Sir Henry Spelman promising them a favourable reception both for their own worth and for the sake of their Author He was a Person endow'd with those excellent Qualities which never fail to recommend others to your Grace's good opinion and esteem A Gentleman of great Learning and a hearty Promoter and Encourager of it In his Temper Calm and Sedate and in his Writings Grave and Inoffensive a true lover of the Establisht Church and a zealous maintainer of her Rights and Privileges In which respect the Clergy of this Nation were more particularly engag'd to Him because being a Lay-man and so not lyable to the suspicion of Prejudice or Interest his Reasonings carry'd in them a greater weight and authority than if they had come from one of their own Order I might add as some sort of excuse for this Trouble that He had the honour to be particularly respected by two of your Grace's Predecessors and some of his Posthumous Works by a third Arch-bishop Abbot and his immediate Successor were the chief Encouragers of the First Volume of his Councils and after his death the Second Part of his Glossary was publisht by the procurement of Arch-bishop Sheldon So that these Papers have a kind of hereditary right to your Grace's Protection All the share that I have in this Work is the handing it into the World and to make the first Present to your Grace would be no more than a decent regard to the Eminence of your Station though I had no particular obligation to do it But in my Circumstances I should think my self very ungrateful if enjoying so much Happiness under your Grace's Patronage I should omit any opportunity of expressing my Thankfulness for it Especially since such small Acknowledgements as this are the only Returns that I can ever hope to make for the Encouragement which You daily afford to Your GRACE'S most obliged and most dutiful Servant EDMUND GIBSON THE PREFACE I Shall not make any Apologie for the publication of these Treatises They seem'd to me to be very useful towards a right understanding of the Laws and Antiquities of England and I hope they will appear so to others too Nor need I endeavour to recommend them to the world any otherwise than by shewing them to be the genuine Labours of Sir H. Spelman whose Learning Accuracy and Integrity are sufficiently known The first of them concerning Feuds and Tenures in England was written in the Year 1639. and is printed from a fair Copy in the Bodleian Library corrected with Sir Henry Spelman's own hand The Occasion of writing it was the Great Case of Defective Titles in Ireland as may be gathered in some measure from the hints that our Author has given us but is much more evident from the Case it self printed afterwards by order of Thomas Viscount Wentworth the then Lord Deputie The Grounds thereof with the Pleadings and Resolutions so far as they concern the Original of Tenures were in short thus The several Mannours and Estates within the Counties of Roscomon Sligo Mayo and Gallway in the Kingdom of Ireland being unsettl d as to their Titles King James I. by Commission under the Great Seal dated the 2d day of March in the 4th Year of his Reign did authorize certain Commissioners by Letters Patents to make Grants of the said Lands and Mannours to the respective Owners Whereupon several Letters Patents to that effect passed under his Majesties Great Seal by virtue of the said Commission for the strengthening of Titles that might otherwise seem defective And afterwards in the Reign of King Charles I. upon an Enquirie into his Majestie 's Title to the Countie of Mayo there was an Act of State publisht commanding all those who held any Lands in that County by Letters Patents from the Crown to produce them or the Enrollment thereof before the Lord Deputie and Council by a certain day To the end that they might be secur'd in the quiet possession of their Estates in case the said Letters were allow'd by that Board to be good and effectual in Law In pursuance of this Order several Letters Patents were produc'd and particularly the Lord Viscount Dillon's which last upon the perusal and consideration thereof by his Majestie 's Council were thought to be void in Law And therefore it was order'd by the Lord Deputie and Council that the doubt arising upon the Letters Patents should be drawn up into a Case and that Case to be openly argu'd at the Council-Board The Case was drawn up in these words King James by Commission under the Great Seal dated the second day of March in the fourth year of his Reign did authorize certain Commissioners to grant the Mannour of Dale by Letters Patents under the Great Seal of this Kingdom to A. and his heirs and there is no direction given in the said Commission touching the Tenure to be reserv'd There are Letters Patents by colour of the said Commission pass'd unto A. and his heirs to hold by Knights Service as of his Majesties Castle of Dublin Here it was agreed on all hands that the Letters Patents were void as to the Tenure and that the Commissioners had acted beyond their Commission in reserving a mean Tenure to the prejudice of the King when they ought either to have reserv'd an express Tenure by Knight's Service in Capite or have mention'd no Tenure at all but have left the Law to imply a Tenure in Capite The question therefore was Whether the deficiency of the Tenure did so far affect the Grant as wholly to destroy the Letters Patents Or Whether the Letters Patents might not be good as to the Land and void only as to the Tenure The Case was argu'd several days by Counsel on both sides and was afterwards deliver'd up to the Judges who were requir'd by the Lord Deputie and Council to consider of it and to return their Resolution But upon private Conference not agreeing in their Opinions it was thought necessary for publick satisfaction to have it argu'd solemnly by them all which was accordingly done And when it came to be debated whether the reservation of a Tenure so different from that intended and warranted by the Commission could make void the whole Grant this happen'd to lead them to a more general Enquirie What the reservation of a Tenure is
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
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
every eight hides or plough-land through the whole Kingdom shall find a man with a Crosset and Helmet to the Naval Expedition And every three hundred and ten plough-lands an ordinary ship For these purposes was the whole Land formerly divided either by Alfred the great or some other precedent King into 243600. hydes or plough-lands and according to this division were the military and other charges of the Kingdom impos'd and proportion'd without ever any mention of Tenures in â—â—â—ite or by Knight-service Hence it rose that the Saxon Kings in granting oâ— lands liberties and priviledges unto Ecclesiastical persons and others were usually so careful in reserving Expedition Burghbote and Brigbote as you may see in the Charters of King Withred Ina Aethelbald Aethelwulph Edgar c. in the Britain Councils as also in the Charters here following and in a multitude of others elsewhere besides Neither did this Military Expedition otherwise at that time bind the Saxons to a Tenure in capite or Knight-service then it doth us at this day in the Naval Expedition lately now reviv'd For better manifestation that Thanelands were subject to no feudal service consider I pray you the words of the Saxon passage before mention'd where it is said that a Thane must have three hydes at least of his agenes lande i. e. of his own land not terrae emphiteuticariae or precariae not usu-fructuariae or feodatariae but as a Latin copy hath it terrae suae propriae where the word propriae carrieth another sense than is ordinarily conceiv'd as to signifie in this place land wherein no other man hath any interest by feodal superiority or dominion but whereof himself hath meram proprietatem the sole and absolute propriety even the same Alodium that is spoken of in the Report and which no man hath or can have now at this day but the King's land holden of no man in the feodal sense for the phrase of tenure was not then in use amongst the Saxons nor ty'd any man to do any feodal service Another old Latin MS. therefore reciteth the same Saxon passage in these words Si villanus so they at that time call'd a Husbandman ita crevisset sua probitate quod pleniter haberet quinque hidas de suo proprio alodio c. dignus erat honore Liberalitatis quod Angli dicunt Ãanescipes surðe si autem liberalis homo 1. Ãegen Thanus ita profecisset ut Regi servisset vice sua equitaret in Missatico Regis hic talis si haberet alium Thanum sub se qui ad expeditionem Regis quinque hidas teneret in Aula Regis domino suo servisset c. Here I must say with Cujacius speaking of the Author of the second Book of Feuds Proprietatem alias vocat quod hic Alodium Noting thereby that Proprietaâ— and Alodium are synonima signifying land free from all feodal service and holden of no body Yet in that sense Alodium is here said to be Terra ad expeditionem Regis land oblig'd to the warfare of the King I must note also by the way that he that thus translated the Saxon passage by the words qui ad expeditionem Regis quinque hidas teneret follow'd the manner which before we spake of in rendring Saxon customs by Norman phrases The Reader perhaps will here understand teneret in the feodal sense for to hold of his Lord whereas in the Saxon book the words are no otherwise than gif he heâ—de i. e. if he had five hydes of land so that teneret here is no otherwise to be taken than for possideret To return to our purpose Thaneland might no doubt be tyed to do Military service or Knight-service and yet not holden in capite or by Knight-service for it is one thing to hold by Knight-service and another to be tyed to do it No man holdeth that hath not tenementum or tenementale quiddam But a man might be tyed to do this military expedition for his personal estate tho' he had no land or for his very person it self as appeareth by the laws of King Ina Cap. 52. where it is said gif se siðcundman c. If the Sithcundman having land forbeareth to go the Expedition he shall forfeit his land and 120s. and if he have no land yet he shall forfeit 60s. and an Husbandman who if he had land was but Tenant in Socage according to our Law 30s. It appeareth also by many Charters of the Saxon Kings that Thane lands were not feodal and that the military Expedition mde no Tenure by Knight-service Give me leave therefore to produce some of them that you may see thereby the use of those times and what the Kings themselves conceiv'd therein 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. EGO Eadwigh Monarchiam totius Britanniae Insulae cum superno juvamine obtinens cuidam meo fideli Ministro vocitato nomine Aelfwine duas mansas dimidiam tribuo perenniter illic ubi antiquorum hominum relatu nominatur at Schylfhinghatune habeat quam diu vivat post cui voluerit impertiat cum his rebus quae sibi rite pertinent tam in magnis quam in minimis Sit haec donatio immunis a servitute mundana excepto illo labore qui communis omni populo videtur esse not naming Expeditione c. but concluding Si quis augeat augeatur Si quis minuat careat praemio aeterno c. So that here he was freed a servitute mundana both great and small that was incident or inherent to the land by way of Tenure and yet he was chargeable to military Expedition and to the repairing of Bridges Castles Burroughs and Fortifications but that not otherwise than as all the land of the Kingdom was charg'd as before we have shew'd Regnante in perpetuum Domino nostro c. Ego Eadgarus Rex Anglorum caeterarumque gentium in circuitu persistentium gubernator rector cuidam fideli meo Ministro vocato nomine Alur modicam muniminis mei partem Terrae i. e. in Dorset tres perticas in illo loco ubi Anglica appellatione dicitur at Lonk ut habeat ac possideat quamdiu vivat post se unum haeredem quicunque sibi placuerit derelinquat Sit hoc praedictum rus liberum ab omni malorum obstaculo cum omnibus ad rus rite pertinentibus campis pascuis pratis sylvis Excepto communi labore Expeditione pontis arcis constructione Si quis vero hominum hanc meam Donationem cum stultitiae temeritate jactando infringere tentaverit sit ipse gravibus per colla depressis catenis inter flamivomes tetrorum doemonum catervas nisi prius ad satisfactionem emendare voluerit Istis terminis haec tellus ambita videtur Ãis is þe landgemark at Lonk c. Haec
under these names all the lands that belong'd thereunto And those that dwelt upon those mansas c. they called not tenentes holders as we do but manentes as persons abiding there All the foresaid words being of the middle-age-dialect not appropriated to the feodal language Fourthly In granting of feuds and feud lands the consideration is allways for matter de futuro as pro homagio servitio habendo But here in granting these Thane-lands the consideration is for service past or present signified by the quality of the Thane as fideli ministro meo or pro placabili obsequio not only without reservation of any future service but with express immunity from all services as to use the words of the Charters themselves 1. ut sint libera vel immunia à servitute mundana 2. Ab omni malorum obstaculo 3. Liberrima ab omni munduali obstaculo 4. Liberrimum ab omni munduali obstaculo in magnis modicis 5. Aeterna libertate jocundum 6. Liberum ab omni seculari gravedine Such was the freedom of these Thane-lands equal and no less than that of the lands given in Franck-Almoigne by King Edgar in the last cited Charter which are there said to be Omni terrenae servitutis jugo liberae imperpetuum Fifthly The Feodal lands might not be aliened without Licence But the Thane by the very words of his original Charter might grant them cuicunque voluerit Sixthly A Feodal tenant or tenant by Knights-service as we call him could not devise his land by Will before the statute of 32. Hen. VIII tho' it were with Licence of the Lord and of the King himself which law the Germans themselves do hold even unto this day And the Danes can yet devise no land by Will as I am informed but the Thane might devise his Thane-land to whom he would as appeareth bâ— the words of King Edward the Confessor in a Charter to Thola where he saith Possideat hanc meam regiam donaâ—â—onem quamdiu vivat post obitum suum cuicunque voluerit haeredi relinquat excluding hereby all title of Wardship and Feodal duties To the same effect are the rest of the Charters and therewith agreeth the priviledge of a Thane before mentioned Thani lex est ut sit dignus rectitudine testamenti sui As for that passage in the Will of Brictrick the Saxon where he seeketh his Lord s consent that his Will may stand I conceive it to be in respect of some â—oâ—â—land or custumary land which according to the use of that time he held at the will of his Lord and not in respect of any Thane-land For tho' this Brictrick were a man of great possessions yet was he none of the chiefest sort of Thanâ—s called the King's Thanes but as appeareth by his Will an under-Thane belonging to Aelfric who was Earl of Mercia And how far the priviledge of these under or lesser-Thanes extended I cannot yet determine Seventhly If Thane-land were of the nature of lands holden by Knight-service then by the Feodal law of that time it could not transire a lancea ad fusum that is it might not be granted to Women for Women were not then nor long after capable of Feodal land But the land here granted to Thola was Thane-land as appeareth by the very words of her Charter for that it is granted in aeternam haereditatem perpetualiter possidendam which words making an estate of inheritance were only proper to Thane-land otherwise called Bocland not to Folcland or Popular land which was but at Will of the Lord for years or for life Eighthly There could no tenure nor service lye upon the Thane-lands other than what was expressed in the Charters For in the end of every of them there was an horrible curse which in those days was fearfully respected laid by the King himself upon all those that should violate the Charter either by adding other incumbrances or by diminishing the granted immunities So that it is not to be supposed that there was any lurking Tenure or matter of plus ultra to impeach them The curse beginneth in every of the Charters with these words Si quis autem c. Ninthly and lastly Touching Expedition and repairing of Castles and Bridges which the Saxons called Burghbote and Brugbote tho' the two first of them be wholly military and the last serving as well for the passage of the King's Army as for the trade and commerce of his people yet were none of them either marks of Tenure or of Feodal service as appeareth by that we have formerly shew'd and by the testimony of these Charters where to use the words of Edw the Confessor in that to Thola it is said that they are Omnibus hominibus communia a common burthen to all men as belonging to the safety and sacred anchor both of the Kingdom and Common-wealth The Saxons therefore did not call them services or Feodal duties as things that lay upon the person of the owner but landirecta rights that charg'd the very land whosoever did possess it Church or Lay man And these duties were ordinarily excepted in every Charter not for that they should otherwise be extinguished but per superabundantem cautelam lest the general words precedent should be mistaken to involve them and to release that which the King could not release For tho' Ethelbald by his Charter to the Monks of Croyland did give the site of that Monastery with the appendancies c. libera soluta ab omni onere seculari in perpetuam elâ—emosynam yet in his Charter of priviledges granted to all Churches and Monasteries of his Kingdom speaking of the repairing of Castles and Bridges he confesseth and saith that Nulli unquam relaxari possunt And I suppose that the word Expedition was here omitted by the negligence of the Scribe for I never find it severed from repairing of Castles and Bridges in any other Charter And also tho' King Ethelwulf by his memorable Charter of priviledges ratified by the great Council of Winchester in the year 855. did by express words free Sanctam Ecclesiam that is all the Churches and Monasteries of his Kingdom ab Expeditione pontis extructione arcis munitione yet the whole Clergy about the year 868. did notwithstanding voluntarily assist his son Beorredus against the Danes with all the power they could as appeareth by the Charter of the same Beorredus CHAP. XI More touching the freedom of Thane-land out of Doomsday THo' that which is delivered in these Charters be authentical and need no farther proof yet to convince broad spreading errors the more manifestly it will not be unnecessary to shew what Doomsday it self relateth to confirm it For whereas lands holden in Capite and by Knights-service could not otherwise be disposed than by licence of the King or Superior Lord Doomsday sheweth that the Thane-lands might be used and disposed at the pleasure of the owner without impeachment
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
heirs upon every gift grant and alienation tho' no word were spoken of them It appeareth by the Feodal-law from whence all that part of our Common-law that concerneth Tee and Tenures hath original and which our Common-law also affirmeth that there was always due ..... Those that thus receiv'd their Territories from the King were said to hold them in Capite for that the King is Caput Regni and were thereupon call'd Capitanei Regis and Capitanei Regni otherwise Barones Regis the King's men Tenants or Vassals who having all the land divided amongst them saving that which the King reserv'd to himself as Sacrum Patrimonium were also call'd Pares Regni and were always upon commandment about the person of the King to defend him and his Territories in war and to counsel and advise him in peace either Judicially in matters of Law brought before the King in his Palace which in those days was the only place of Royal justice or Politically in the great affairs of the Kingdom Hereupon they were not only call'd Praetorianum consilium as belonging to the King's Palace but Magnum concilium Regis and Magnum concilium Regni For that in those times it belonged only to them to consult with the King on State-matters and matters of the Kingdom insomuch as no other in the Kingdom possessed any thing but under them And therefore as in Despotical Government the agreement or disagreement of the Master of the Family concluded the menial and the whole Family so the agreement and disagreement of the chief Lord or him that held in Capite concluded all that depended on him or claimed under him in any matter touching his Fee or Tenure To this purpose seemeth that in the Laws of Edward the Confessor ratified by the Conqueror Debet etiam Rex omnia ritè facere in regno per judicium procâ—rum regni These great Lords according to this Archetype of Government set them by the King divided their lands in like manner among their Tenants and followers First they assign'd a portion ad victum vestitum suum which they committed over to their Socmen and Husbandmen to furnish them with Corn Victuals and Provision for Hospitality and briefly all things necessary to their domestical and civil part of life The residue they divided into as many shares or portions as might well maintain so many Military men whom then they call'd their Knights and thereupon the shares themselves Knights-fees i. e. stipendia militaria And these Fees they granted over to each of their principal followers furnishing them with so many Knights for the wars These Grantees that receiv'd their Estates from the Barons or Capitanei and not from the King were called Valvasores a degree above Knights and were unto their Lords the Capitanei or Barones Regis as they the Capitanei were unto the King and did in like manner subdivide their lands among their Socmen and Military followers who in old time were call'd Valvasini whom I take to be the same at this day that are the Lords of every Mannour if not those themselves that we call Knights as owners of a Knights-Fee For in this the Feodal-law it self is doubtful and various as of a thing lost by Antiquity or made uncertain by the differing manners of several Nations Insomuch that Valvasores and Valvasini grew to be confounded and both of them at last to be out of use and no other Military Tenures to be known amongst us than tenere pâ—r Baroniam and tenere per feodum militare But in a Charter of Henr. I. it is said Si exurgat Placitum de divisione Terrarum si interest Barones meos Dominicos tractetur in Curia mea si inter Vavassores duorum Dominorum tractetur in Comitatu c. Where the Valvasores were also and the Barons themselves Suitors and Attendants Bracton mentioneth them in Henry III's time to be Viri magnae dignitatis Nor was their memory clean gone in Richard II's days as appeareth by Chaucer Yet do I not find in any of our ancient Laws or Monuments that they stood in any classick kind of Tenure other than that we may account the Baron Vavasor and Knight to be as our Lawyers at this day term them the Chief Lord Mesne and Tenant But herein the Feodal-law of our Country differ'd from that of Milan and other parts For there the Valvasini could invest which we call infeosse none under them in fee that is to hold of them by Knights-service And with us every Tenant Par aval might in infinitum till the Statute of Quia Emptores Terrarum enfeoffe another by Knight-service and to do all the services unto him that he did to his Mesne Lord. So that by this means a line of Knights-services might be created of a dozen yea twenty Mean-Lords and Tenants wherein every of them might have his prochine Tenant obliged unto him in the duties and services that his Lord Paramont which held of the King was to do and yeild unto the King himself for the same lands viz. Honour Ward Sustenance   Safety Marriage  give keep  Attendance Relief Counsel to Aid Defence of his Person Tribute Fidelity  Defence of his Patrimony     All which in ancient time while the Feodal-law flourished were well understood to be comprehended under the profession of Homage and the oath of Fidelity which every Feodal Tenant or as others call him Vassal usually did unto his Lord. Honour promis'd by the Tenant upon his knees in doing Homage which tho' it be the greatest and most submiss service that a Freeman can do unto his Lord yet the profession of it to the meanest subject is as ample and submiss yea in the very same words that to the King himself Attendance to follow and attend him in the war at his own charge and in peace with suite of Court Therefore Tacitus calleth them Comites Defence of his person for if he forsook his Lord being in danger it was forfeiture of life land and all he had Defence of his Signiory that nothing of his lands rents or services were withholden or withdrawn Profit by Ward Marriage and Relief as they fell Tribute by way of Aid to make his eldest son a Knight to marry his eldest daughter ransom himself being taken prisoner yea in some places to be an hostage for his Lord. Sustenance that being faln into poverty according to that in the Canon law spoken of a Patron Alatur egenus Counsel and Advice in which respect the Tenant was bound ordinarily once in every three weeks to come to his Lord's Court and there as a Judge with other of his Peers to censure the causes of his Signiory and to direct his Lord as the cause occurrent did require and always to keep his counsel This to the meanest Lord was in the nature of the King 's Great Court or Counsel call'd afterward a Parlyment Fidelity for
pag. 89. concerning this Treatise I shall here briefly exhibit some particulars which I acknowledge to have gather'd from an ample and most judicious discourse on this Subject written by the Learned Sir Henry Spelman Knight in 1614. very well worthy to be made publick THE Occasion of this Discourse ABout fourty two years since divers Gentlemen in London studious of Antiquities fram'd themselves into a College or Society of Antiquaries appointing to meet every Friday weekly in the Term at a place agreed of and for Learning sake to confer upon some questions in that Faculty and to sup together The place after a meeting or two became certain at Darby-house where the Herald's-Office is kept and two Questions were propounded at every meeting to be handled at the next that followed so that every man had a sennight's respite to advise upon them and then to deliver his opinion That which seem'd most material was by one of the company chosen for the purpose to be enter'd in a book that so it might remain unto posterity The Society increased daily many persons of great worth as well noble as other learned joyning themselves unto it Thus it continu'd divers years but as all good uses commonly decline so many of the chief Supporters hereof either dying or withdrawing themselves from London into the Country this among the rest grew for twenty years to be discontinu'd But it then came again into the mind of divers principal Gentlemen to revive it and for that purpose upon the day of in the year 1614. there met at the same place Sir James Ley Knight then Attorney of the Court of Wards since Earl of Marleborough and Lord Treasurer of England Sir Robert Cotton Knight and Baronett Sir John Davies his Majestie 's Attorney for Ireland Sir Richard St. George Knt. then Norrey Mr. Hackwell the Queen's Solicitor Mr. Camden then Clarentieux my self and some others Of these the Lord Treasurer Sir Robert Cotton Mr. Camden and my self had been of the original Foundation and to my knowledge were all then living of that sort saving Sir John Doderidge Knight Justice of the King 's Bench. We held it sufficient for that time to revive the meeting and only conceiv'd some rules of Government and limitation to be observ'd amongst us whereof this was one That for avoid offence we should neither meddle with matters of State nor of Religion And agreeing of two Questions for the next meeting we chose Mr. Hackwell to be our Register and the Convocator of our Assemblies for the present and supping together so departed One of the Questions was touching the Original of the Terms about which as being obscure and generally mistaken I bestow'd some extraordinary pains that coming short of others in understanding I might equal them if I could in diligence But before our next meeting we had notice that his Majesty took a little mislike of our Society not being enform'd that we had resolv'd to decline all matters of State Yet hereupon we forbare to meet again and so all our labours lost But mine lying by me and having been often desir'd of me by some of my Friends I thought good upon a review and augmentation to let it creep abroad in the form you see it wishing it might be rectify'd by some better judgement SECT I. Of the Terms in general AS our Law books have nothing to my knowledge touching the original of the Terms so were it much better if our Chronicles had as little For tho' it be little they have in that kind yet is that little very untrue affirming that William the Conquerour did first institute them It is not worth the examining who was Author of the errour but it seemeth Polydore Virgil an Alien in our Common-wealth and not well endenized in our Antiquities spread it first in Print I purpose not to take it upon any man's word but searching for the fountain will if I can deduce them from thence beginning with their definition The Terms be certain portions of the year in which only the King's Justices hold plea in the high Temporal Courts of causes belonging to their Jurisdiction in the places thereto assigned according to the ancient Rites and Customs of the Kingdom The definition divides it self and offers these parts to be consider'd 1. The Names they bear 2. The Original they come from 3. The Time they continue 4. The Persons they are held by 5. The Causes they deal with 6. The Place they are kept in 7. The Rites they are performed with The parts minister matter for a Book at large but my purpose upon the occasion impos'd being to deal only with the Institution of the Terms I will travel no farther than the three first stages of my division that is touching their Name their Original and their Time of continuance SECT II. Of the Names of the Terms THe word Terminus is of the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifieth the Bound End or Limit of a thing here particularly of the time for Law matters In the Civil Law it also signifieth a day set to the Defendant and in that sense doth Bracton Glanvil and others sometimes use it Mat. Paris calleth the Sheriff's Turn Terminum Vicecomitis and in the addition to the MSS. Laws of King Inas Terminus is applied to the Hundred-Court as also in a Charter of Hen. I. prescribing the time of holding the Court. And we ordinarily use it for any set portion of Time as of Life Years Lease c. The space between the Terms is named Vacation à Vacando as being leasure from Law business by Latinists Justitium à jure stando because the Law is now at a stop or stand The Civilians and Canonists call Term-time Dies Juridicos Law-days the Vacation Dies Feriales days of leasure or intermission Festival-days as being indeed sequester'd from troublesome affairs of humane business and devoted properly to the service of God and his Church According to this our Saxon and Norman Ancestors divided the year also between God and the King calling those days and parts that were assigned to God Dies pacis Ecclesiae the residue alloted to the King Dies or tempus pacis Regis Divisum Imperium cum Jove Caesar habet Other names I find none anciently among us nor the word Terminus to be frequent till the age of Henry II. wherein Gervasius Tilburiensis and Ranulphus de Glanvilla if those books be theirs do continually use it for Dies pacis Regis The ancient Romans in like manner divided their year between their Gods and their Common-wealth naming their Law-days or Term-time Fastos because their Praetor or Judge might then Fari that is speak freely their Vacation or days of Intermission as appointed to the service of their Gods they called Nefastos for that the Praetor might ne fari not speak in them judicially Ovid Fastorum lib. 1. thus expresseth it Ille Nefastus erat per quem tria verba silentur Fastus erat per
Durandus in the first Chapter of his seventh Book reckoneth the Purification Ascension and St. John Baptist to be Grand days not mentioning All-Saints but both he in his 34 th Chapter and Belethus in his do call it Festum Maximum Generale being not only the Feast of Apostles and Martyrs but of the Trinity Angels and Confessours as Durandus termeth it And that honour therefore and duty quod in singulis valet potentius valebit in conjunctis As for the Feast of All-Souls neither Durandus nor Belethus nor any ancient of those times for they lived almost 400. years since do record it for a Festival But our Country-man Walsingham the Monk of St. Albans saith that Simon Arch-bishop of Canterbury in the year 1328. at a Provincial Council holden at London did ordain Quod die Parasceue in commemoratione Omnium Animarum ab omni servili opere cessaretur Surely he mistook it for neither is it so mention'd in Lindewood reciting that Canon nor in the ancient Copy of the Council it self where the two Feasts canonized by him are the Paresceue and the Conception of the Blessed Virgin Yet doubtless whensoever it was instituted it was a great Feast with us tho' no where else For the old Breviarium Eboracensis Ecclesiae doth not only set it down in the Kalendar for a double Feast but appointeth after the whole service with the nine Lessons for it as a Feast of the Trinity And though neither the Statute of Edward VI. nor our Church at this day do receive it yet being formerly a Vacation day as it seemeth our Judges still forbear to sit upon it as not hitherto made a day in Courts tho' deprived of Festival rites and therefore neither graced with Robes nor Feasting The Feast also of St. Peter and Paul on the 29 th of June was a double feast yet it is now become single and our Judges sit upon it I confess I have not found the reason unless that by Decanonizing St. Paul and so leaving St. Peter single we allow him no prerogative above the other Apostles lest it should give colour for his Primacy for to St. Paul as one born out of time we allow no Festival either in the Statute of Edward VI. or in the Almanacks and Kalendars of our Church And why St. Peter hath it not is the more observable for that he not only is deprived of the ancient rights of his Apostleship contrary to the Canons as the other are but also of the priviledge given him in that place by Pope Nicholas the 2 d. in a Bull to Edward the Confessour and being Patron of the Paroche and Dedication of Westminster where the Terms are kept and where by the right of his day he was also priviledged from Court business Other Festivals I enquire not after as of St. Dunstan and the rest that stand rubricate in old Kalendars they being either abrogated by old Canons of our own Church or the Statute of Edward VI. whereof I must note by the way that I find it repealed by Queen Mary but not revived by Queen Elizabeth or since I am carried from the brevity I intended yet all this lyeth in my way nor is it out of it to speak a word of St. George's-day which sometimes falleth in Easter-Term and is kept in the Court Royal with great solemnity but not in the Courts Judicial Tho' he stood before in the Kalendar and was the English Patron of elder time yet H. Chichley Arch-bishop of Canterbury gave him his greatness by Canonizing his day to be as a double Feast and Grand day as well among the Clergy as Laity and that both the one and other repairing to their Churches should celebrate it as Christmass-day free from servile-work in ardent prayers for safety of the King and Kingdom The occasion of this Constitution was to excite King Henry the V. being upon his Expedition for Normandy and tho' this among other holy-days was abolished by the Statute 5. and 6. of Edw. VI. yet it being the Festival of the Knights of the Garter it was provided in the Statute That the Knights might celebrate it on the 22 d. 23 d. and 24 th of April Other Feasts there were of this nature as that of St. Wenefred on the second of November which is in effect no day of sitting but applied to the pricking of Sheriffs These are vanished and in their room we have one new memorably day of intermitting Court and Law business for a little in the morning whilst the Judges in their Robes go solemnly to the great Church at Westminster on the fifth of November yearly to give God thanks for our great delivery from the Powder-Treason and hear a Sermon touching it which done they return to their Benches The Institution hereof is by Act of Parliament Jacobi and it is of the kind of those Ferial days which being ordained by the Emperours not by the Popes are in Canon and Civil Law called Dies Feriati repentini I will go no farther among the tedious subtilties of distinguishing of days I have not been matriculated in the Court of Rome And I confess I neither do nor can explain many objections and contrarieties that may be gathered in these passages Some Oedipus or Ariadne must help me out CHAP. III. Why some Law business may be done on days exempted IN the mean time let us see why some Law business may be done on days exempted and sometimes on Sunday it self notwithstanding any thing before mentioned For as in Term-time some days are exempted from Term business and some portion of the day from sitting in Courts so in the Vacation-time and days exempted some Law business may be performed by express permission of the Canon Law according to that of the Poet in the Georgicks Quippe etiam Festis quaedam exercere diebus Fas jura sinunt The Synod of Medard admitteth matters de pace concordia to be dispatched both on holy days and on Sunday it self the Laws of Hen. I. matters of Concord and doing Fealty to the Lord the decree of Gregory IX cases of necessity and doing piety according to that of Prosper Non recto servat legalia Sabbata cultu Qui pietatis opus credit in his vetitum The rule is verified by our Saviour's healing on the Sabbath Out of these and such other authorities of the Laws Ecclesiastical and Civil cited in the Glosses the Canonists have collected these Cases wherein Judges may proceed legally upon the days prohibited or do the things herein following For matters of Peace and Concord by reason whereof our Judges take the acknowledgement of Fines Statutes Recognizances c. upon any day even the Sabbath-day tho' it were better then forborn if necessity require it not For suppressing of Traitours Thieves and notoriours Offenders which may otherwise trouble the peace of the Common-wealth and endanger the Kingdom For manumission of Bond-men a work of Piety For saving that which
otherwise would perish a work of Necessity For doing that which time overslipt cannot be done As for making Appeals within the time limited c. For taking the benefit of a Witness that otherwise would be lost as by Death or Departure For making the son sui Juris as if amongst us the Lord should discharge his Ward of Wardship All which are expressed in these Verses Haec faciunt causas Festis tractare diebus Pax Scelus admissum Manumissio Res peritura Terminus expirans mora testis abesse volentis Cumque potestatis Patriae jus filius exit Or thus according to Panormitanus Ratione Appellationis Pacis Necessitatis Celeritatis Pietatis Matrimonii Latrocinii ubicunque in mora promptum est periculum So likewise by consent of parties upon Dies Feriati minus solennes viz. Harvest Hay-seed c. as we have said before And divers others there are whereof see the Glosses in Gratian and in the Chapter Conquestus but especially the Title De Feriis Dilationibus in ff from whence most of the premises are deduc'd and where also by a Constitution of Trajan Military business may be done in diebus feriis and at all times Rescripsit saith the Law ferias tantum à forensibus negotiis dare vacationem ea tamen quae ad disciplinam militarem pertinerent esse feriatis diebus peragenda Upon these reasons the Admiral-Court is always open for that strangers and Merchants and sea faring-men must take the opportunity of Tides and of Winds and other necessities and cannot without ruine or great prejudice attend the solemnity of Courts and dilatory Pleadings The Marshal's Court also for Military matters falleth within the priviledge granted by Trajan yet hath it observ'd as near as conveniently it may the Canons of the Church as forbearing to assign battle in Quadragesima temporibus prohibitis And so lately in the case between the Lo. Raye and Mr. Ramesey So likewise the Chancery being a Court of piety is said to be always open but I take this to be understood as it is Officina brevium and Consistorium aequi boni not where it is Praetorium Juris communis and proceedeth in course of the Common Law As for the Star-chamber it is in lieu of that which was in ancient time the Counsel-chamber and Specula Regni the watch-tower of the Kingdom where the Barons and other of the King's Counsel us'd to meet ad prospiciendam fovendamque Remp. to discover prevent and suppress all dangers and enormities occurrent and to provide for the safety and good of the Kingdom It was necessary therefore that this Session should not only be daily open but as is said of the house of Fame Nocte dieque patens for an evil may happen in the night that would be too late to prevent in the morning And therefore the Statute of 3. Henr. VII and 21. Henr. VIII enlarging the jurisdiction hereof do not circumscribe it either with Term-time or days of sitting CHAP. IV. Why the end of Michaelmass-Term is sometimes holden in Advent and of Hilary in Septuagesima c. BUt the Terms sometimes extend themselves into the days of the Church which we call Vacation as when Advent Sunday chanceth on the 27 th of November then Michaelmass-Term borroweth the day after out of Advent and when Septuagesima followeth suddenly upon the Purification Hilary-Term not only usurpeth upon it and Sexagesima which by the precedent of the Church of Rome here before mention'd it may do but also upon Quinquagesima Ash-wednesday and Quadragesima it self for all which there is matter enough in one place or other already shewn Yet it is farther countenanced by the Statute of 3. Edw. I. cap. 48. where it is thus provided Forasmuch as it is great charity to do right unto all men at all times when need shall be by assent of all the Prelates it was provided that Assizes of Novel Disseisin Mordauncester and Darrain Presentment should be taken in Advent Septuagesima and Lent even as well as Inquests may be taken and that at the special request of the King made unto the Bishops Where it is to be noted that Inquisitions might be taken before this Statute within the days prohibited or Church time and that this Licence extended but to the particularities therein mentioned CHAP. V. Why Assizes be holden in Lent IT seemeth that by virtue of this Statute or some other particular dispensation from the Bishops Assizes began first to be holden in Lent contrary to the Canons I find in an ancient Manuscript of the Monastery of St. Albans a dispensation of this kind thus entituled Licentia concess Justic Reg. de Assis tenend sacro tempore non obstante Pateat universis per praesentes nos Ricardum miseratione divina Abbatem Monasterii Sancti Albani licentiam potestatem authoritate praesentium dedisse dilecto nobis in Christo Domino Johanni Shardlow sociis suis Justic Dom. Regis Assisas apud Barnet nostrae jurisdictionis exemptae die Lunae proximo ante Festum S. Ambrosii capiendi juxta formam vim effectum brevis Domini Regis inde iis directi In cujus c. Anno Domini c. Sub magno Sigillo Whether this was before or after the Statute it appeareth not it may seem before for that otherwise it needed not But I find Shardlow to be Justice of Oier in Pickering Forest 17. Aug. An. 8. Edw. I. If it were after it seemeth the Writ to the Justices extended to somewhat out of the Statute and that this Licence was obtained in majorem cautelam But to conclude hereby it appeareth that although we find not the reasons of things done in ancient ages yet nothing was done against the Rules of the Church without special Licence and dispensation The Feast of St. Ambrose mentioned in the Licence was on the fourth of April which commonly is about a week or two before Easter And the Abbat of St. Alban having exempt jurisdiction within the Province of Canterbury granteth this dispensation to hold Assizes in tempore sacro as the Rubrick explaineth it lest the words nostrae jurisdictionis exemptae might be applied to some layick Franchise I assure my self there are many of this kind if they might come to light And as they granted Licence in times prohibited so they censur'd such as offended without Licence as appeareth by the case of Sir Gilbert Plumpton An. 1184. who being to be hang'd at Worcester upon the Sunday for a Rape committed by him the Bishop prohibited execution for that day upon pain of Excommunication c. CHAP. VI. Of the Returns OF the Returns I will not venture to speak much but nothing at all of Essoine and Exception-days for that draweth nearer to the faculty of Lawyers wherein I mean not to be too busie The Returns are set days in every Term appointed to the Sheriff for certifying the Courts what he hath done in
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
of Peace between their Neighbours Congratulations Embassages and such like Viand But what moves you to let slip King John Edward II. Richard II. Henry VI. and Richard III. Selv. Not for that they were free from foreign Expences which is not possible for it oppressed them all but for that most of them omitted such necessary charge as in policy they ought to have undergone both for strengthening themselves with Friends and weakning their suspected Enemies such as when occasion serv'd were like to do them damage For if Edw. III. had not by this means fortify'd himself with the alliance and friendship of the noble Knight Sir John of Henault the Dukes of Brabant and Gelderland the Arch-bishop of Colein the Marquess Gulâ—ck Sir Arnold de Baquetien the Lord Walkenbargh and others and also greatly impaiâ—'d the power of the French King by winning the Flemings from the obedience of the Earl of Flanders his assured friend and by procuring the stay of much of the aid by him expected out of the Empire Scotland and other places he had not only fail'd in his French attempts but also put his Kingdom of England in hazard by the Scots who were sure of all the help and backing that France could any way afford them So had it not been for the aid and friendship of the French King the Earls of Bullogne St. Paul the Gascoines and other foreigners Henry III. had been bereav'd of his Kingdom by his own Subjects which notwithstanding he held with great difficulty So the rest likewise But on the contrary part the others whom you nam'd neglecting this right precious tho' costly ground work not only wanted it when need required but with the ruine of their People State and Kingdom lost their Crown and dearest lives by the infernal hands of cursed Murtherers their rebellious Subjects getting once the better hand Viand But Edw. II. used means also to have procured the amity and assistance of divers foreigners as the Duke of Britain the Lord Biskey the Lady Biskey Governess of the King of Castile and Leon James King of Arragon and others And Rich. II. sought the like of the hands of the French King and so the rest likewise of others Selv. True not examining the dependencies of time present they imagined in their prosperity that things to come would ever have good success and therefore deferr'd still the doing of it till extream necessity compell'd them to it and then their Estates being utterly desperate and ruinated no man willingly would lend them aid or ear Knowing that when the fury of the disease hath once possessed the vital places it is then too late to apply Physick This reason made the Princes you speak of to refuse King Edward II. And as for Richard II. when the French King saw how he was entangled and overladen with dangerous Rebellions and Divisions of his Nobles and Commons at home war in Scotland Flanders Spain Portugal Ireland sending forces against the Infidels releiving the expell'd King of Armenia and many other such turbulent affairs he then thought and truly that there was more to be gotten by being his Enemy than his Friend and taking advantage of that opportunity defied him also and warr'd upon him So that King Richard wholly void of aid and hope fell into the hands of his proud Barons and lost both Crown and Life In like miserable sort stood the case with Henry VI. For being once descended to the lowest exigent who almost durst releive him or any of the rest for fear as our Proverb saith of pulling an old house upon his own head Whereas if in their flourishing estate they had employ'd their treasure to encounter future perils being yet afar off they had no doubt securely held their Crowns and perhaps without much business illuded all the practices of their Enemies drawing nearer Had Richard II. at the time when being in France he bestow'd the value of 10000l. in gifts upon the fickle French King stay'd there and employ'd the other 300000. and odd marks by him also wasted at that bravery in gaining the amity of his neighbour Princes to serve his turn when need should be it is not unlikely but afterwards it might have sav'd all the rest For it is a good rule that is taught us in the art of Fencing to break the blow or thrust that might endanger us as far from our Bodies as we can For as I said before when things be drawn to the last period the time of help is past according to the saying of Hecuba to her betray'd husband being about to arm himself Quae mens tam dira miserrime conjux Impulit his cingi telis aut quo ruis inquit Non tali auxilio nec defensoribus istis Tempus eget non si ipse meus nunc afforet Hector Most Royal therefore are the Providence and Expences of her Excellent Majesty who as it were with Linceus eyes looking into the lowest secrets of the practices of her Enemies hath not only for these 36. years utterly cancell'd and made them frustrate but foreseeing also what mighty consequences may depend on mean beginnings omitteth no diligence to defeat them whilst they are yet in the shell or so to environ the mark whereat they are levell'd as being hatch'd they shall be able to perform nothing Knowing it to be far greater wisdom to preserve the body whilst it is sound from all infirmities than by admitting a dangerous disease to gain the credit of an excellent cure And tho' mony be the Blood wherein the Life of all Common-wealths as in a nest is cherisht yet nature teacheth that to preserve health and cure an impostumate disease we ought to let blood out and that sometimes in great abundance And as Themistocles said Pecunia nervus belli mony is also the sinews of war and look how necessary Peace is in a Common-wealth so necessary is War to beget Peace for Peace is Belli filia the daughter of war But to return to our matter lest we fare like the unskilful hounds that undertake a fresh hare when they have hunted the first till she be almost spent It appeareth by that that hath been said that a main Port by which our treasure hath been vented from us heretofore is now shut God be thank'd and that instead thereof no new is opened So that thereby our store must needs remain better by us than it hath and we by consequence must be the richer It is also to be added that whereas in former times much of the treasure that came into the land was buried up in superstitious employments as about Images Shrines Tabernacles Copes Vestiments Altar-cloaths Crucifixes Candlesticks c. by means whereof the Common-wealth became no whit richer than if that part so employed had never come within the Land Now we do not only retain that Idolatrous charge still in our purses which makes us much the wealthier but the rest also which for many hundred years together was so employ'd is
in Shoe-lane by a Lease from the Bishop of that See temp Edw. VI. yeilding some Rose or other small or not valuable Rent 19. The Bishop of LINCOLN'S Place was Southampton-house in Holborn convey'd temp Edw. VI. to the Lord Writoheseley then Lord Chancellor in fee for which the Bishop hath no other house in or near London as is thought 20. The Bishop of CHICHESTERS Place or Palace as Matthew Paris in his Chronicle calleth it reciting the story of the Lord Arch-bishop of Canterbury visiting St. Bartholomews did at that time lye in that house which was in Chancery-lane where Sir Richard Read sometime a Master of the Chancery and Mr. Atkinson the Counsellor at Law and others dwelt and dwell in and is said to be in Lease from the Bishop's Predecessors for divers years What the Rents reserv'd yearly be the Lease will shew the same 21. The Bishop of St. ASAPH never had Place at or near London that I can learn of neither in the valuation of the See where all his Possession and Jurisdictions be valu'd in the First-fruit-office is there mention of any such Place neither doth the now Bishop of that See know the same 22. The Bishop of the ISLE OF MAN call'd Sodorensis Episcopus altho' the same be an ancient Bishoprick yet was he never Lord of the Parliament of England having no Chapter or other Clergy but only an Archdeacon and all the Incumbents of the several Parishes of that Isle And before the said Statute of 33. Hen. VIII was neither a Suffragan of the Province of Were wont in former times to ride on Mares or Mules 119. Prohibited to take cognizance of Wills 129. Blackney Harbour 151. Blicking 151. The birth place of Q. Anna Bullen ibid. Bocland what 12. Not subject to Homage 35. Bond-men anciently not valu'd or rated 15. Reputed only as part of their Master's substance 11 15. Boors who 14. Bouthorpe 157. Bramsil 108 109. Brancaster 147 148. Breakspear Nich. converted Norway 139. Made Cardinal and Pope ibid. Breclys 161. Brennus a Britain invades Greece 3. His attendants ibid. Brictrick a Saxon Thane 22. Britains none of 'em remaining after Cadwallador's departure 100. Their Laws alter'd by the Romans 101. Bronholm 152. Brotherton Tho. Earl of Norfolk and Earl Marshal of England 167. When he dy'd 168. Buckenham 158. Burg-Castle 155. Burghesses of old not call'd to consult of State-matters 64 65. Burghbote and Brugbote 17 22 40. Burnham in Norfolk 149. Burnham-East in Com. Bucks 23. By what it signifies 3. 154. By-laws 3 154. C Cadwallader Prince of the Britains fled into Armorica 100. Calthorp 151. King Canutus how he publish'd his Laws 61. His Constitution touching Festivals 79. Capet Hugh usurpt the Kingdom of France 5 He grants his Nobility a perpetual enjoyment of their Feuds and Honours ibid. 14. Capitales plagii 52. Capitanei Regis regni 58. Caput feodi aut Capitaneus feodi 11. Carbrook 161. Carolus Calvus Emperour and King of France his Synodical Edict 54 55. Carolus Magnus or Charlemaigne divided his Territories between his three Sons 128. Castle-acre 141. Castle-rising in Norfolk the Parson has the Probate of Wills in that Town 130. Caston 151. Castor 155 156. Ceorls who 12. Of two sorts 14. The chiefest part of their profits redounded to their Lords ibid. Their service no bondage ibid. Their valuation and priviledges ibid. Not capable of a Knights Fee ibid. Champain in France 128. Chancery-Court 94. Charta de Foresta 109 114. Charter the first by whom made and where kept 8. Saxon Charters usually writ in that Language ibid. Charters of Thane-lands granted by several Kings 19 20. Chichley Henr. Arch-bishop of Canterbury canoniz'd St. George's day 93. The occasion of that Constitution ibid. Chindavintus King of the western Goths his Law concerning Wills 130. Cingulum quo sensu accipiendum 185. Cinque-Ports priviledges granted to them by King Edward the Confessour c. 26. Clacklose-Hundred 139. Clergy-men forbidden to use hunting 109 112 113. seq When they took upon them to prove Wills 129. Prohibited by Justinian to meddle with those matters ibid. Cley harbour 151. De Clifford Rob. Marshal of England 167. K. Canute's Charter of donation to the Thane Orc. 20. Coin of England in Q. Elisabeth's time 203 c. Colloquia 65. Comites who and why so call'd 3. Commendati 35. Congham 145. Conradus Salicus made a Constitution touching Feuds 4 5. Consecration a strange one of Eadmer a Monk of Canterbury 119. Consilium regni 60. Controversies among the ancient Britains by whom judg'd 74. Conveyance of lands how made by the Saxons 8. Cosshering what 60. Cossey 157. Counties in England 5. County-Courts how often kept 54. Were proclaim'd a sennight beforehand ib. Earl's County and Bishop's Diocess had but one limit 130 131. Ecclesiastical and Secular causes there decided 131. Court-Baron 4. It s Original 51. Court-Leet 51. Sometimes granted to the Lords of Mannours ibid. Court-Christian or Ecclesiastical when it sprung up 131 132. High Courts of Justice why they sit not in the Afternoons 89 90. Why they sit not all some days 90 91. Why they sit on the Rogation days ibid. Why on some Festivals and not on others 91 The Admiralty-Court why always open 94. Chancery-Court said to be always open ib. Cowshil 153. Creak 149. Cromer 152. Crostwick 153. Crowner's Office not before the Conquest 27. D Dane-blood 149. Dane-law 45. Danes not capable of devising lands by will 22 David I. King of Scotland and Earl of Huntingdon 11 131. Dean his Office and Functions 50. The priviledges of a Bishop's Dean ibid. Deerham West 140. Defensor Plebis 129. Degradatio Militis 185. Deira a Province 13. Demains or Demesne what 12. Ancient Demesnes had not any lands by Knight-service 44 57. D'Evreux Robert Earl of Essex Viscount Bourchier c. 171. Sent into Spain with an army ibid. Storm'd Cadiz ibid. Created Marshal of England ibid. Made Lord Deputy of Ireland ibid. When beheaded ibid. Dies juridici 72 73. Dies feriales 72. Dies pacis Ecclesiae ibid. 79. 82. Dies pacis Regis ibib 82. Dies novem Lectionum 91. Dies feriati repentini 93. Dower why judg'd to belong to the Ecclesiastical Court 132. Downham 140. Druides who 74. The sole Judges of controversies among the old Britains 74. Suppos'd to have us'd the Greek tongue 103 Had no knowledge of the Latin ibid. Dudley John Duke of Northumberland and Earl Marshal of England 170. E Eadmere a Monk of Canterbury made Arch-bishop of St. Andrews in Scotland 119. King Eadwigus's Charter of Thane-lands granted to Aelswine 19. Earl Marshals of England 169 170 171. Earl of a County see Alderman Earldoms not hereditary in ancient times 13. Earldoms in France ibid. 14. Earls among the Saxons 13 14. Earl no title of dignity anciently 13. Their Office depended on the King's pleasure ibid. An Earls Heriot 31. Easter-Term how limited anciently 83. Easter-week when exempted from Law business 76. Ebsam in