Christian King caused his own Laws to be put in writing about the year 605. as other Western Nations in an age or two before had done and as Bede saith wrote them in the Saxon tongue The first Charter if I shall so call it or writing touching lands and privileges was as a MS. of Canterbury reporteth made by Withredus King of Kent in the year 694. and as that Charter it self witnesseth was appointed to be kept in the Church of our Saviour at Canterbury as a precedent for posterity to imitate and tho' it appeareth not there in what language it was written yet I presume it was in the same with their Law which was the Saxon tongue For there be two copies of it extant in Latin so differing the one from the other as thereby they both appear to be translations For proof thereof the one of them useth the words Charta and Chartula which Ingulfus affirmeth to be brought in hither by the Normans that is above three hundred years after the time of this Charter of Withred's The other Latin copy termeth it Scriptum not Chartam and the Saxons themselves used neither of those words but called such writings in Latin Chirographos not Chartas as Ingulfus there also testifieth So that it hereby appeareth that the Prototype or first pattern of Charters which the Saxons imitated was not in Latin but in Saxon. Secondly it is therefore to be presumed and very strongly that tho' this Charter of Beorredus remaineth to us by a Latin copy yet the original it self like a thousand others was in the Saxon tongue Nor could it in all probability be otherwise for at the very time when it was made viz. in anno 868. learning was so generally subverted throughout England by the barbarous Danes that King Alfred who began to reign within four years after the date thereof saith Paucissimi fuerunt cis Humbrum qui vel preces suas communes sermone Anglico intelligere potuerant vel scriptum aliquod è Latino transferre Tam sane pauci fuerunt ut ne unum quidem recordari possum ex australi parte Thamesis tum cum ego regnare occaeperam But as their original Charters were in the Saxon tongue so in the Leiger-books in which they are preserved to us they are often set down in the Saxon and then because the books themselves are in Latin they are there translated also into Latin and often times set down in the Latin only without the Saxon as in the book of Ramsey-Abby which having no Charters in it in the Saxon tongue the Author of it saith that himself had there translated them all into Latin after that that Abby in the days of King Stephen had recovered her liberty Yet I deny not that Latin Charters might be often used by their latter Clergy-men when learning which in Beorred's time was utterly subverted began at last to recover life again Thirdly I conceive that the word feudum or feodum was not in use in Beorredus's days viz. anno 868. For proof whereof we are to consider the infancy youth and full age of the Feodal Law for according to these several times the Feodal Lands had their several denominations First they were called Munera then Beneficia and lastly Feuda as is aforesaid Marculfus who collected the Formulas or Precedents as we call them of Charters and Instruments of the time he lived in which was under Clodovaeus II. King of France about the year 660. maketh mention in his first book of Munera and in his second of Beneficia but no where of Feuda and he who a hundred years or more after him collected the Formula's incerti Autoris speaketh divers times of Beneficium but never nameth Feudum for that this term came not into use till afterwards when these Beneficia began to be granted in perpetuity Beneficium Regis saith Bignonius postea Feudum dictum est And in another place he saith Beneficii nomine ea praedia dicta sunt quae Feuda posteritas dixit initio namque vita accipientis finiebantur As if he should say they were called Beneficia when they were granted only for life of the Grantee but were called Feuda when they began to be granted in perpetuity and not before Cujacius therefore speaking of Feudatarii which word came into use with Feudum for Relatives mutuo se ponunt auferunt saith that when Actores custodesque proediorum nostrorum temporarii perpetui esse caeperunt c. when those who had the use and ordering of our Lands for a certain time began to enjoy them in perpetuity and yet retained their Latin name of Homines our Men they grew then also to be called after new and forreign names Vassalli Leudes and Feudatarii by the Princes and great Noblemen who choosed rather to grant them lands in perpetuity in consideration that they should do them military service And he saith that these names were first brought into Italy by the German Princes Where and particularly in Milan as Merula reporteth the Feodal Laws and Customs have had their original and from thence been propagated throughout Europe By this it appeareth that the words Feudum and Feudatarii were not in use till that the word Munera was grown obsolete Nor afterward till Beneficia leaving to be temporary or but for life became to be perpetual possessions which as I have often said was not long before the Conquest So that the word Feudum could not be in use in Beorredus's time who lived two hundred years before Fourthly Tho' the word Feudum were in the original Charter of Beorredus yet doth it not prove that our Feuds were then in use For call them Beneficia or call them Feuda certain it is that neither the one nor the other were then hereditary or perpetual but either temporary or for life only which at length begat the difference between Feuda and Beneficia for Beneficia in a restrained sense began to signifie no more than an estate for life in which sense it resteth at this day in our Clergy-men's Livings called Benefices and the word Feuda grew to be understood only of such Beneficia or Benefices as were perpetual and hereditary To return from whence we digressed I suppose it now appeareth sufficiently how some Feodal words are crept into Charters and writings of Saxon date and I think I may conclude that the words before mentioned Tenura tenentes tenementa tenere or tenendum in a feodal sense or feodum it self were not in use among them Much less Tenure in Capite Tenure by Knight-service Tenure in Socage or Frank-Almoign tho' the like services were performed to the Saxon Lordships by their Thanes and Theodens their Socmen or Husbandmen and their Beads-men or Clergy-men by way of contract for the lands received from them as were after the Conquest to the Norman Lordships by way of Tenure for lands holden of them The Neapolitan and Sicilian Constitutions which
therefore and truly is it said by the ever honoured Justice Littleton that Feodum idem est quod haereditas and the captious criticism of Sir Thomas Smith Dr. of the Civil Law in denying it is to his own reproach for his great Master Cujacius as before appeareth supporteth Littleton and his fellow Civilians do tell him quod in feudis particularis localis consuetudo attendenda est And Littleton received it as used in this signification from the eldest writers of our Law Of the like indiscretion is that of Dr. Cowell who carpeth at this ancient phrase used in the formulis of our pleading where it is ordinarily said Rex seisitus fuit in Dominico suo ut de feodo as tho de feodo was there to be understood according to the Court of Milan for praedium militare superiori Domino servitiis obnoxium not by the laws of England pro directo dominio vel haereditate pura absoluta To conclude therefore It appeareth by this passage of Justice Littleton's joyned to that we have formerly delivered that our Law took no notice of Feuds till they were become hereditary with us which being since the Conquest as we have already shewed and shall prove abundantly hereafter overthroweth all the arguments in the Report produced for proving our Feodal rites of Tenure Wardship Marriage Relief c. to have been in use among the Saxons for till they were hereditary these appendances could not belong to them It is also very improbable that Feuds were made hereditary here in England before other Countries or that the more civil Nations of Europe should take example herein from our rude if not illiterate Saxons CHAP. III. That none of our Feodal Words nor Words of Tenure are found in any Law or ancient Charter of the Saxons IT appeareth by that which hath been said that our modern kind of Feuds could not be in use among our English Saxons And it will now be a question whether any of our modern Tenures or which of them were then in use or not The Report saith It is most manifest that Capite-Tenures Tenures by Knight-service Tenure in Socage Frank-Almoign c. were frequent in the time of the Saxons I desire that without offence I may examine this that is so manifest and so frequent I confess there be many specious shews of Knight-service and Socage among our Saxon Ancestors but whether by way of Tenure Contract or De more Gentium must be well examined For the Romans and other Nations had formerly as great command over their followers and such as dwelt upon their lands as our Saxons had yet was it without any rule or speech of Tenure The word Tenura is neither known nor found in any Latin Author of antiquity nor any conjugate thereof as tenentes tenementa tenere or tenendum in a feodal sense The first place where I meet with tenere in that manner is amongst the Saliques and Germans in the Constitution before mentioned of Conradus the Emperour about the year 915 when Beneficia which we now call Feuds were first continued to some of the sons and grand-children of the male line of them that then enjoyed them But I find not one of those words or any consignificant or equivalent to them in all our Saxon-laws The word Feodum Feud or Fee it self is never mentioned in them nor is there any sound of Tenure in Capite Tenure by Knight-service Tenure in Socage Frank-Almoign c. either in our Saxon laws or in the laws of any other Nation that I can find till the time that Feuds began to be perpetual or hereditary as before is mentioned It is true that in some Latin Charters of the Saxon time we now and then find the words Tenere tenementum and tenendum and in a Charter of Beorredus King of the Mercians dated Anno 868. the words de eodem seodo as tho' Lordships at that time had been distributed into Feuds which being reported by Ingulfus a Saxon giveth great probability that Feuds were then in use But it is to be noted that these Charters are as I said in Latin and not in Saxon and therefore not likely to be the very originals but translations of them made after the Conquest for the instruction of the Normans either by Ingulf himself or some other expert in the Norman language laws and customs Who applying himself to the understanding of the Normans used Norman words and such interpretation as they were best acquainted with tho' differing from the propriety of the Saxon tongue and so perhaps translated de eodem fâ—odo for de eodem territorio or patrimonio and tenentes tenementa and tenendum for possidentes possessiones and possidendum Not unlike our translators of the holy Scriptures who tell us of the Arms of Families Chancellors Sheriffs Recorders Townclerks Doctors of Law Homage done to Solomon and of the arraignment of our blessed Saviour as tho' the Jewish and Asiatick Nations had in those days of old their College of Heralds the same Magistrates Officers Degrees in School Customs of Law Pleas of the Crown and form of Government which we in England have at this day By such allusions I suppose or illusions rather came our later Feodal words into ancient Latin Charters I desire to see but one Charter in the Saxon tongue before the Conquest wherein any Feodal Word is apparently expressed A Saxon Chronicle telleth us that King Alfred in the year 896. gave London to Ethelred an Earl or Alderman that married his daughter Ethelfled to healdo that is ad tenendum which some understand Feodally as to hold it of him but Wigorniensis reports the matter plainly ad servandum that is to keep and defend it So among the customs of Kent the word healder i. e. holder is used for a Tenant in the Saxon distich there cited But it is to be noted that those customs were collected long after the Conquest and therefore written in the Norman tongue not in the Saxon and that the distich it self is not of the ancient Saxon but of a puisne dialect used vulgarly since the Conquest But because the Charter of Beorredus produced by my self against my self is more material for proof of Feuds among the Saxons than all that is alledged to that purpose in the Report First in respect of the Antiquity thereof then for that it nameth the word feodo expresly and thirdly for that it declareth certain lands to be de eodem feodo as if there were many other Feods then in use Give me leave I beseech you to examine this Charter yet more largely and particularly It is therefore to be understood that the elder Saxons made their ordinary conveyance of Lands c. without deed or writing by delivery of a Turff or Spear a Staff an Arrow or some other symboll in token thereof Yea their very Laws like those of the Lacedaemonians called Rhetra were unwritten till Ethelbert their first
have been in use among our Saxons than it doth in all the rest of them and enforceth me thereby to the greater labour in examining it and discovering the contrary Touching the name Wardship I confess it carryeth a Saxon sound but from Norman God-fathers with whom Gard signifying the same that Ward doth with us and they bringing this custom into England our English Ancestors as in a multitude of other words changed the Norman G. into a W. and so made Ward for Gard and thereof Wardship for Gardship Yet to this day we call him that hath the custody of the ward after the Norman manner his Gardian not his Warden But I find neither Ward Wardship nor Warden in this sense in any Saxon Law Charter or Manuscript or any thing conducing to such signification The proof being in the affirmative lyeth on the other side yet doth not the Report produce one single Case Text or Precedent to maintain their assertion but like Pythagoras's Schollars resteth wholly upon Ipse dixit such and such have said it and I am now turn'd over to those Authors They have chosen a right good foreman 1 confess Mr. Selden of whom I say as she in Ovid Nomine in Hectoreo pallida semper eram But let us hear what he affirms according as the Report conceiveth him where the words be thus That Wardships were then viz. in the Saxon's time in use and not brought in by the Normans as Mr. Cambden in his Britt 179. nor by Henry III. as Randolph Hygden c. would perswade Vid. Selden's notes to Fortâ—scue 51. The Report says Vide and I say audi Mr. Selden to confute this opinion attributed to Rand. Hygden useth these words Neither is the custom of Wardship so new as R. Hygden in his Polycronicon or rather some others not understanding him ignorantly make it by supposing the beginning of it here under Hen. III. clearly Wardships were before or from the Normans at least Thus Mr. Selden There may be some amphiboly in the word before as doubtful whether it shall relate to the Normans or to Hen. III. but the occasion of his speech is to confute the opinion of them that did attribute the beginning of Wardships to Hen. III. saying that clearly they were before and tho' he determineth not how long before yet he concludeth that from the Normans at least citing Glanvill to shew they were in use in Hen. II's time and the Grand Custumer of Normandy to fetch them higher than so from the Normans who by the opinion of Berhault that writ the Commentary to that Custumary did first bring them into England Mr. Selden God be thanked is living to explain himself and I find by chance where he hath done it fully His words in the Titles of Honour be thus These kind of Military Fiess or Fees as we now have were not till the Normans with whom the customs of Wardship in Chivalry they began not under Hen. III. as most ignorantly R. Hygden the monk of Chester and Polydore tells you came into England And speaking by and by of Malcolm second King of Scotland who dyed about twenty two years before the Conquest he saith But in this Malcolme's time Wardships were not at all in England Thus Mr. Selden whom they so often press against me out of ambiguous places is clearly with me Their next Authority to prove Wardships to have been in use amongst the Saxons is saith the Report that amongst the priviledges granted by Edw. the Confessour to the Cinque Ports we meet with this That their heirs shall not be in Ward For this they cite Lambard's Perambulation of Kent p. 101. but I demand Oyer of the Record and I verily perswade my self Nul tiel Recorde nor in truth hath Lambard averr'd that there is Lambard's words be these The priviledges of these Ports being first granted by Edw. the Confessour and William the Conqueror and then confirm'd and encreased by William Rufus Hen. II. Rich. I. Hen. III. and King Edw. the first be great c. And in reciting some of these priviledges he tells us amongst the rest That they themselves the Inhabitants of the Cinque Ports be exempted from all payments of Subsidies and their Heirs freed from Wardship of body notwithstanding any Tenure He doth not say that this is in the Charter of Edward the Confessor but that it is among the priviledges granted by him and William the Conqueror and then confirm'd and encreas'd by the succeeding Kings Doubtless the word Subsidies here mention'd in this sense was not in use either in the Confessor or Conqueror's time nor in many years after till Taxes Aids and Tallages were grudged at and restrain'd I am therefore confident that this came in among the encreased priviledges afterward and it appeareth that Mr. Lambard was not perswaded that there was such a Charter of the Confessor's time and therefore waving it seeketh the original of the priviledges of the Cinque Ports no further than the Conqueror Why then do we father this upon the Confessor especially seeing the Charter of Anno 6. Edw. I. wherein all the Charters of the precedent Kings seem to be mention'd that of Edw. the Confessor is not spoken of The third assertion is that in the customs of Kent which are in Magna Charta of Tottil's Edition and in Lambard's Perambulation there is a rule for the Wardship of the heir in Gavelkind and that he shall not be married by the Lord. And those customs say of themselves that they were devant le Conqueste e en le Conqueste The words in Lambard be devant le Conqueste e en le Conquest e toutes houres ieskes en ca. That is before the Conquest and at the Conquest and ever since till now which word now relateth to the 2â— of Edw. I. there immediately before mention'd And to save the credit of the Author must be favourably understood to be meant of such customs as were in use either before the Conquest or at the Conquest or at any time since in the disjunctive not in the aggregative For if it be taken conjunctively then is it notoriously false for some things mention'd in it had their original under Hen. II. as the Grand Assize and Justices of Eyer whereof that of Eyer was not instituted till the Council or Parliament as we now call it of Nottingham An. Dom. 1176. viz. in the 22. or 23. of Hen. II. And for that of the Grand Assize it is expresly said in the customs that it was granted them by Hen. III Many other things there be as the Office of the Crowner the manner of Essoyning Writ of Cessavit c. which I suppose was never heard of before the Conquest But if you mark it the words in question viz. devant le Conquest c. stand in Lambard at a little more distance than the lines precedent as if himself conceiv'd them not to belong unto the
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-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
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
Carew Contrary to a perswasion very common now adays That Philosophy Oratory Poetry and the other Exercises which take up the first four years in our Universities are altogether foreign to the business of Lawyers and that the study of them is so much loss of time to Gentlemen design'd for that honourable Profession After he had continu'd at home about a twelve-month he was sent to study the Law at Lincoln's-Inn either with a design to practise it or which is more likely as a necessary accomplishment of an English Gentleman There he stay'd almost three years but was then unhappily remov'd when we may imagine he began to relish the Law and in some measure to conquer the difficulties of it Many years after we find him complaining of his hard Fortune in the Preface to his Glossary and he concludes his complaint with a character of the Common-Law which I will here transcribe for the honour of the Profession Excussit me interea è Clientela sua speaking of the Law gratiae potestatis dignitatis immensaeque apud nos largitrix opulentiae Illa inquam vestitu simplici inculto sed jurium omnium Municipalium absit dictis invidia nobilissima domina omni utpote justitia moderamine prudentia sublimique acumine temere licet eam perstrinxerit Hottomannus refertissima He was about twenty years of Age and retiring into the Countrey married the eldest Daughter and Coheir of John Le Strange a Gentleman of an ancient Family in Norfolk By this match he became Guardian to Sir Hamon Le Strange during whose Minority he liv'd at Hunstanton the Seat of that Family and was High Sheriff of Norfolk By degrees he begun to be taken notice of for his great Prudence and Abilities and was accordingly three several times sent by the King into Ireland upon publick business At home he was appointed one of the Commissioners To enquire into the oppression of exacted Fees in all the Courts and Offices of England as well Ecclesiastical as Civil which a late Author calls A noble Examination and full of Justice To this business he gave his constant attendance for many years together with great integrity and application and the Government was so sensible of his good services that the Council procur'd his Majesties Writt of Privy Seal for 300l. to be presented to him not as a full Recompence for so they declar'd but only as an occasional Remembrance till they should have an opportunity of doing something for him that might be a more suitable consideration for his diligence in that and other publick Affairs This attendance made him neglect his own private business to the great prejudice of his Family as he himself seems to complain in his Preface to the Glossary And his eldest Son Sir John Spelman represented to the Privy Councel how much his Father's Estate had suffer'd by it appealing for a proof of his great pains therein to the knowledge of several of their Lordships to the Journals of that Commission and to his papers and collections relating to the same I cannot give any particular account of the other publick Services wherein he was employ'd He was Knighted by K. James who had a particular esteem for him as well on account of his known capacity for business as his great Learning in many kinds more especially in the Laws and Antiquities of our Nation These for a good part of his Life he seems to have study'd for the service of his Prince and his own diversion but not with an eye to any particular design When he was about 50. years of Age he resolv'd to draw his affairs into as narrow a compass as might be with a full design to bestow the remainder of his time among Books and Learned Men. With this resolution he sold his Stock let his Estate quitted the Countrey and settl'd in London with his wife and family His next business was as he himself tells us to get together all such Books and Manuscripts as concern'd the subject of Antiquities whether foreign or domestick For in these Enquiries he had ever had a particular delight and now being in a good measure free'd from the daily disturbances he was before exposed to it was natural for him to fall into a study to which his own genius had always led him It is likely he had then a good understanding of the Laws and Customs of the Kingdom I mean the Modern part of them such as is commonly us'd in the ordinary practice of it But such a general knowledge could not satisfie a Mind so curious and a Judgement so solid as his appears to have been in all his Writings These inclin'd him to search into the Reasons and Foundations of the Law which he knew were not to be learnt but from the Customs and Histories of our Nation in all Ages nor these Usages to be trac'd out but by a strict examination of the most ancient Records and Manuscripts And as his own inclination led him to this Enquiry so not troubling himself with the Practice of the Law but content to live quietly upon his own Estate he was perfectly at leasure to pursue it And indeed as the best things in this world are attended with inconveniences it is very much to the disadvantage of the Law that those of the Long Robe who are best qualified to improve the knowledge of it from original Records are so much taken up with the business of their Profession that they have little time to bestow upon those matters As on the other hand Men who are born to Leasure and Estates however inclinable they may be to the more polite parts of Learning do seldom care to engage in a study which at first sight seems to be so rough and tedious Thus the one wants Leasure and the other Resolution and so the Monuments of our Fore-fathers being neglected we are depriv'd of a great deal of useful knowledge that might be drawn from them It was the happiness of Sir Henry Spelman and much more of the English Nation that he had both time and inclination to do it I mean to examine the ancient Laws and Monuments not only of our own but also of most other Northern Kingdoms Particularly he was very well versed in the old Feudal law and has shewn us in a Discourse upon that head how most of the Tenures here in England have their foundation from thence This near relation between their Customs and our Constitutions made him many times marvel that my Lord Cooke adorning our Law with so many flowers of Antiquity and foreign learning should not turn aside into this field from whence so many roots of our Law have of old been taken and transplanted And I wish so he goes on some worthy Lawyer would read them diligently and shew the several heads from whence these of ours are taken They beyond the seas are not only diligent but very curious in this kind but we
thought fit to omit it and I would not have the good Man depriv'd of such a publick testimony of his Modesty and love for Truth About the Year 1637. Sir William Dugdale acquainted our Author that many Learned Men were very desirous to see the Second Part publisht and requested of him to gratifie the world with the Work entire Upon that he show'd him the Second part as also the improvements that he had made upon the First but withall told him what great discouragements he had met with from the Booksellers So for that time the matter rested and upon the Author's death all the papers came into the hands of his eldest Son Sir John Spelman a Gentleman who had sufficient parts and abilities to compleat what his Father had begun if death had not prevented him After the Restoration of King Charles II. Arch-bishop Sheldon and the Lord Chancellor Hyde enquir'd of Sir William Dugdale what became of the Second part of the Glossary or whether it was ever finisht He told them that it was finisht by the Author and that the Copy was in the hands of Mr. Charles Spelman Grandson to Sir Henry They desir'd that it might by all means be printed and that he would prevail upon Mr. Spelman to do it for the Service of the Publick and the honour of his Grandfather Whereupon having got a good number of Subscriptions the management of that whole affair was referr'd to Sir William Dugdale as well to treat with the Booksellers as to prepare the Copy for the Press The share that Sir William Dugdale had in the publication of this Second Part has been made the ground of a suspicion that he inserted many things of his own that were not in Sir Henry Spelman's Copy and particularly some passages which tend to the enlargement of the Prerogative in opposition to the Liberties of the Subject The objection has been rais'd on occasion of a Controversie about the Antiquity of the Commons in Parliament the Authority of Sir Henry being urg'd to prove that there was no such thing as a House of Commons till the time of Henry III. It is agreed on all hands that this Learned Knight was a very competent Judge of that Controversie that as he had thoroughly study'd our Constitution so he always writ without partiality or prejudice that he was not engag'd in a party nor had any other design but to publish the truth fairly and honestly as he found it asserted by the best Historians Upon these grounds his Opinion in matters of this nature has ever been thought confiderable and his bare Judgement will always be valu'd when we can be sure that it is his own And there can be no doubt but his Assertions under the Title Parlamentum upon which the controversie is rais'd are his own and not an interpolation of Sir William Dugdale's For the very Copy from which it was Printed is in the Bodleian Library in Sir Henry Spelman's own hand and agrees exactly with the Printed Book particularly in the passages under dispute they are the same word for word So far then as this Copy goes for it ends at the word Riota it is a certain testimony that Sir William Dugdale did no more than mark it for the Printer and transcribe here and there a loose paper And tho' the rest of the Copy was lost before it came to the Oxford Library and so we have not the same authority for the Glossarie's being genuine after the Letter R yet it is not likely that Sir William had any more share in the seven last Letters of the Alphabet than he had in the others For all the parts of such a Work must be carry'd on at the same time and so to be sure the Author left equal materials for the whole The Gentleman also who is concern'd to prove the Second Part to be all genuine has urg'd Sir William Dugdale's own authority for it and that too while he was living Then I have seen a Letter from Sir William Dugdale to Mr. Spelman giving him an account of the great losses he had sustain'd by the Fire of London and the pains he had taken in the publication of the Councils and Glossary As to the former he expresly lays claim to the better half of it as his own Work and Collection adding that if the Impression had not perisht in all right and reason he ought to have had consideration for the same as also so he goes on for my pains in fitting the Copy of the Glossary for the Printer by marking it for the difference of Letter and introducing and transcribing those loose papers left by your Grandfather without fit directions where they should come in This is all that he pretends to in the Glossary and if he had any further share in it t is likely he would have insisted upon it on this occasion to convince Mr. Spelman the more effectually of the good services he had done him in that business I have been the more particular in this matter because if it should appear in the main that Sir William had taken the liberty of adding or altering every single passage after would be lyable to suspicion and the authority of the whole very much weaken'd For tho' that worthy Person was extremely well vers'd in our English affairs yet it must be own'd that Sir Henry Spelman was a better judge of our ancient Customs and Constitutions and consequently whatever he delivers as his opinion ought to be allow'd a proportionable authority Had he put his last hand to this Second Part the Glossary as it is now printed together would have made a much nobler Work But the latter part in comparison of the other is jejune and scanty and every one must see that it is little more than a collection of Materials out of which he intended to compose such Discourses as he has all along given us in the First Part under the words that are most remarkable It was my good fortune among others of his papers to meet with two of these Dissertations De Marescallis Angliae and De Milite which are publisht among these Remains for the present and will be of use hereafter in a new Edition of the Glossary as properly belonging to it and originally design'd for it by the Author Tho' it is not likely that he should lay aside his Glossary for the sake of the Councils yet it is certain that he enter'd upon this latter Work before the Glossary was finisht He was particularly encourag'd in it by Dr. George Abbot and Dr. William Laud successively Arch-bishops of Canterbury and above all by the most Learned Primate of Armagh Archbishop Usher And in his Preface he tells us that he was much confirm'd in his design by what he had heard from Dr. Wren first Bishop of Norwich and afterwards of Ely He told him how Dr. Andrews the then late Bishop of Winchester had been reflecting with great concern upon the
diligence of the Germans French Italians and other Nations in publishing the Histories and Decrees of their respective Synods whilst the English who had a greater plenty of Evidences both in Ecclesiastical and Civil affairs than any of their Neighbours had never so much as attempted such a publick Service to their Church Upon that occasion the good Bishop desired Dr. Wren that for the credit of the Kingdom and the honour of Religion he would think of such an Undertaking and lest it should prove too tedious for any single hand that he would draw to his assistance a convenient number of Men of sufficient Learning and Judgement for a Work of that nature Upon this request he promis'd to consider of it and had proceeded but that the Bishop excus'd him upon an assurance that Sir Henry Spelman was engag'd in the same design Sir Henry having been told this passage by the Bishop of Norwich with great modesty express'd his concern for taking the Work out of much abler hands But since it had hapen'd so he did not any longer look upon it as a matter of choice whether or no he should go forward but thought he was bound in justice to make the best satisfaction he was able for depriving the Church of the joint labours of so many Learned Men. He branch'd his Undertaking into three parts assigning an entire Volume to each Division 1. From the first Plantation of Christianity to the coming in of the Conqueror in 1066. 2d From the Norman Conquest till the casting off the Pope's Supremacy and the dissolution of Monasteries by King Henry VIII 3d. The History of the Reform'd English Church from Henry VIII to his own time The Volume containing the First of these Heads was publisht in the Year 1639. about two years before his death with his own Annotations upon the more difficult places He confesses that it would have been impossible for him to finish it without the assistance of his own son and Mr. Jerem Stephens Of the former of these we have occasion to speak more at large among Sir Henry's children and also of the latter upon occasion of some papers that he left at his death to the care of that Learned Gentleman Only it may be proper to observe in this place that Arch-bishop Laud procur'd for him a Prebend in the Church of Lincoln for his assisting in the publication of the First Volume of the Councils And Sir Henry does in effect recommend to him the preparing the Second and Third as a person every way qualified to compleat the Design The Author honestly tells us that in such a confusion of thoughts and papers he had omitted the accounts of some Synods which he had ready by him that he had receiv'd Observations from many Learned persons after the Press was gone too far to have them inserted and that particularly the Learned Primate of Armagh had communicated his Animadversions upon the whole Volume I have seen among his own papers the Remarks of Salmasius and De Laet but where the rest are to be met with I cannot tell Out of these the Corrections and Additions that he himself had made he resolv'd to publish an Appendix to the Tome but I suppose was prevented by death However to encline the Reader to a favourable interpretation of the omissions or imperfections of his Work he desires him to consider that most of his Materials were to be fetch'd from Manuscripts whereof indeed there were very great numbers both in the Universities and other parts of the Kingdom but being neglected by the generality of Scholars they lay in confusion and were in a great measure useless to his or any other Design At that time this was a just and proper Apologie but our Age is much more curious in those matters Witness that noble Catalogue of Manuscripts which we daily expect from the Oxford Press and a Volume of the same kind intended by the University of Cambridge The Second Volume of the Councils at the same time with the second part of the Glossary was put into the hands of Sir William Dugdale by the direction of Arch-bishop Sheldon and Chancellor Hyde He made considerable Additions to it out of the Arch-bishop's Registers and the Cottonian Library so that he affirms in a Letter to Mr. Spelman Grandson to Sir Henry That of the 200. sheets in that Book not above 57. were of his Grandfather's collecting And it appears from the Original in the Bodleian Library under the hands of Sir Henry Spelman and Sir William Dugdale that the former had left little more towards the second Volume than hints and references where the Councils were to be met with It was publisht in the Year 1664. but with abundance of faults occasion'd by the negligence either of the Copier or Corrector or both Mr. Somner sensible of this took great pains in collecting the printed Copy with many of the Original Records correcting the Errors in the margin of his own book This is now in the Library of the Church of Canterbury and will be a good help towards a more accurate Edition as well as those collections of Mr. Junius in the possession of Mr. Jones of Sunningwell The truth is we very much want a new Edition the greatest part of the Impression having been burnt in the Fire of London so that the Book is hardly to be met with and uncorrect as it is has ever since bore an immoderate price I know no Work that would be a greater service to our Church than an entire History of all the Councils before the Reformation for the account of 'em which we have already is far from being entire with the Addition of a Third Volume to contain the Publick Affairs of our Reform'd Church It is probable that towards this last part some assistance may be had from that Manuscript of Sir William Dugdale's entitl'd Papers to be made use of for a Third Volume of the Councils tho' I fear not so much as the title promises The great discoveries of Manuscripts the many observations that have been made by the Learned Bishop of Worcester and others upon the Constitution of the British and Saxon Churches and the general approbation that the Work must needs meet with are all of 'em very good Encouragements to such an Undertaking Next to his Glossary and Councils we are to give an account of that part of his Works wherein he asserts a due Veneration to Persons Places and Things consecrated to the service of God The first that he publisht of this kind was his noted Treatise De non temerandis Ecclesiis printed at London in the 16â—3 and afterwards at other places It was written as the title informs us for the sake of a Gentleman who having an appropriate Parsonage employed the Church to prophane uses and left the Parishioners uncertainly provided of Divine Service in a Parish there adjoining The two Oxford Editions came forth with a large Preface by his
Majesty would please to consider his Son Accordingly the King sent for Mr. Spelman and with many expressions of kindness immediately conferr'd on him the honour of Knighthood After the Civil Wars broke out his Majesty by a Letter under his own hand commanded him from his own house in Norfolk to give his attendance at Oxford where he was oftentimes call'd to Private Councel and employ'd to write several papers in Vindication of the Proceedings of the Court But while he was thus attending the affairs of the Publick and when these would give him leave his own Private Studies he fell sick and died the 25. of July 1643. His Funeral Sermon by his Majestie 's special order was Preached by Arch-bishop Usher an intimate Acquaintance both of the Father and Son In the Year 1640. he had publisht the Saxon Psalter from an ancient MS. of Sir Henry's which as he tells us in the Preface was a task enjoyn'd him by his Father He also wrote the Life of King Alfred in English which having layn several years in Manuscript was at last translated into Latin and publisht in 1678. with Mr. Walker's Commentary upon it Clement Spelman youngest Son to Sir Henry was a Councellor and made Puny Baron of the Exchequer upon the Restoration of King Charles II. He publisht some peices relating to the Government and a large Preface to his Father's Book De non temerandis Ecclesiis Dying in June 1679. he was buried in St. Dunstan's Church in Fleet-street To return to Sir Henry He dy'd in London at the house of Sir Ralph Whitfeild his Son-in-law being about 80. years of Age. His body by the favour of King Charles was appointed to be inter'd in Westminster-Abbey whither it was carried with great solemnity on the 24 th of October 1641. and buried at the foot of the Pillar over against Mr. Camden's Monument The Several DISCOURSES Contain'd in this Volume 1. THe Original Growth Propagation and Condition of Feuds and Tenures by Knight-service in England pag. 1. CHAP. I. The occasion of this Discourse and what a Feud is p. 1. CHAP. II. The Original Growth and Propagation of Feuds first in general then in England p. 2. CHAP. III. That none of our Feodal words nor words of Tenure are found in any Law or ancient Charter of the Saxons p. 7. CHAP. IV. Of Tenures in Capite more particularly p. 10. CHAP. V. What degrees and distinctions of Persons were among the Saxons and of what coudition their Lands were p. 11. CHAP. VI. Of Earls among our Saxons p. 13. CHAP. VII Of Ceorls and that they were ordinarily but as Tenants at will or having Lands held not by Knight-service p. 14. CHAP. VIII Of Thanes and their several kinds p. 16. CHAP. IX Charters of Thane-lands granted by Saxon Kings not only without mention of Tenure or Feodal-service but with all Immunity except Expedition c. p. 19. CHAP. X. Observations upon the precedent Charters shewing that the Thane-lands or Expedition were not Feodal or did lye in Tenure p. 21. CHAP. XI More touching the freedom of Thane-land out of Doomsday p. 23. CHAP. XII The fruits of Feodal Tenures and that they were not found among the Saxons or not after our manner p. 24. CHAP. XIII No profit of Land by Wardship in the Saxons time p. 25. CHAP. XIV No Wardship in England amongst the Saxons objections answer'd p. 25. CAAP. XV. No Marriage of Wards p. 29. CHAP. XVI No Livery no Primer-seisin p. 30. CHAP. XVII That Reliefs whereon the Report most relyeth were not in use among the Saxons nor like their Heriots p. 31. CHAP. XVIII Difference between Heriots and Reliefs p. 32. CHAP. XIX No Fines for Licence of Alienation p. 33. CHAP. XX. No Feodal Homage among the Saxons p. 34. CHAP. XXI What manner of Fealty among the Saxons p. 34. CHAP. XXII No Escuage among the Saxons what in the Empire p. 36. CHAP. XXIII No Feodal Escheate of hereditary Lands among the Saxons p. 37. CHAP. XXIV Thaneland and Reveland what no marks of Tenure but distinctions of Land-holders p. 38. CHAP. XXV How the Saxons held their Lands and what obliged them to so many kinds of Services p. 40. CHAP. XXVI The Charter whereby Oswald Bishop of Worcester disposed divers Lands of his Church after the Feodal manner of that time entituled Indiculum Libertatis de Oswalds-Laws-Hundred p. 41. CHAP. XXVII Inducements to the Conclusion p. 43. CHAP. XXVIII The Conclusion p. 46. II. Of the Ancient Government of England p. 49. III. Of Parliaments p. 57. IV. The Original of the four Terms of the Year p. 67. The Occasion of this Discourse p. 69. SECT I. Of the Terms in general p. 71. SECT II. Of the names of Terms ibid. SECT III. Of the Original of Terms or Law-days p. 73 SECT IV. Of the Times assigned to Law-matters call'd the Terms ibid. CHAP. I. Of Law-days among the Ancients p. 74. CHAP. II. Of Law-days amongst the Romans using choice days p. 75. CHAP. III. Of Law-days among the first Christians using all times alike p. 75. CHAP. IV. How Sunday came to be exempted p. 76. CHAP. V. How other Festival and Vacation-days were exempted ibid. CHAP. VI. That our Terms took their original from the Canon-law p. 77. CHAP. VII The Constitution of our Saxon Kings in this matter ibid. CHAP. VIII The Constitution of Canutus more particular p. 78. CHAP. IX The Constitution of Edw. the Confessor most material p. 79. CHAP. X. The Constitution of William the Conqueror p. 80. CHAP. XI What done by Will. Rufus Henry I. K. Stephen and Hen. II. p. 81. CHAP. XII The Terms laid out according to their ancient Laws p. 82. CHAP. XIII Easter-term p. 83. CHAP. XIV Trinity-term p. 84. CHAP. XV. Of Michaelmass-term according to the ancient Constitutions p. 85. CHAP. XVI The later Constitutions of the Terms p. 86. CHAP. XVII How Trinity term was alter'd and shortn'd p. 87. CHAP. XVIII How Michaelmass-term was abbreviated by Act of Parliament 16. Car. I. Cap. 6. p. 81. SECT V. Other considerations concerning Term-time ibid. CHAP. I. Why the High-Courts sit not in the afternoons p. 89. CHAP. II. Why they sit not at all some days p. 90. CHAP. III. Why some Law business may be done on days exempted p. 93. CHAP. IV. Why the end of Michaelmass-term is sometimes holden in Advent and of Hilary in Septuagesima c. p. 95. CHAP. V. Why Assizes be holden in Lent ibid. CHAP. VI. Of the Returns p. 96. CHAP. VII Of the Quarta dies post p. 97. CHAP. VIII Why there is so much Canon and Foreign Law us'd in this Discourse with an excursion into the original of our Laws p. 98. Appendix p. 104. V. An Apologie for Arch-bishop Abbot touching the death of Peter Hawkins the Keeper wounded in the Park at Bramsil July 24. 1621. p. 107. VI. An Answer to the said Apologie p. 111. VII Letters and Instruments relating to the killing of Hawkins by the A. B.
Earldoms But say they tenue neant moiens en fief a vie c. holden notwithstanding as a fief for life not hereditary nor patrimonial in the beginning as afterward they were This change they assign to have been begun about the end of the first line of their Kings who being at that time weak and simple men the Dukes and Earls took opportunity to make their Estates hereditary But it continued not long for the first Kings of the second line reduced them presently to conformity Yet some there were in the remote Provinces that maintain'd themselves hereditary in despight of the Kings whereupon ensued many wars Thus far both these Authors do concur and then Loyseau addeth further That at the end of the second line Hugh Capet having made himself King of France permitted all to hold their Dukedoms Earldoms and Seigneuries hereditarily and taking homage of them as of hereditary Fiefs each party obliged themselves to support the other and their posterity in those dignities as hereditarily This happened in France a little before the Conquest of England and from this precedent of Hugh Capet's did our William the Conquerour make the Earldoms and Feuds in England first hereditary as we have already shewed in the second Chapter So that I conclude as I assumed in the beginning that the Saxon Earldoms were not hereditary nor otherwise Feodal if we shall so term them than for life whereon neither Wardship nor Marriage c. could depend Yet I confess that the Dukes and Earls of the Saxon times both had and might have great possessions in other lands as patrimonial and hereditary namely their Thaneland and in what condition they possessed them it shall appear anon when we come to speak more at large of Thanes and Thane-lands CHAP. VII Of Ceorls and that they were ordinarily but as Tenants at will or having lands held not by Knight-service THe division before mentioned which the Saxons made of their own degrees leadeth me in this next place tho' not orderly to speak of the Ceorle that is of the Carle or Churle and Husbandman The Ancients called him in Latin Villanus not as we ordinarily take it for a Bondman but for him that dwelling in a Village or Country Town lived by the Country course of Husbandry Mr. Lambard therefore to decline the misconceiving of the word Villanus doth render it in the Saxon laws by Paganus which signifieth the same that Villanus doth according to the French for a Villager but not according to our English for a Bondman Our Saxons otherwhile did term them like the Dutchmen Boors that is such as live by tilth or grasing and by works of husbandry Such were the Ceorls among the Saxons but of two sorts one that hired the Lord's Outland or Tenementary land called also the Folcland like our Farmers the other that tilled and manured his Inland or Demeans yielding operam not censum work and not rent and were thereupon called his Socmen or Ploughmen These no doubt were oftentimes his very Bondmen I therefore shall not meddle with them but will hold me to the first sort who having ordinarily no lands of their own lived upon the Outlands before mentioned of their Lord the Thane as custumary Tenants at his will after the usual manner of that time rendring unto him a certain portion of victuals and things necessary for Hospitality This rent or retribution they called Feorme but the word in the Saxon signifieth meat or victuals and tho' we have ever since Henry II's time chang'd this reservation of victuals into money yet in letting our lands we still retain the name of Fearms and Fearmers unto this day The quantity of the Fearme or rent for every plough-land seemeth in those times to have been certain in every Country according to the nature of the place King Ina in his laws did make it so through all the territory of the West-Saxons as you may see with much more touching this matter in my Glossary verbo Firma But insomuch as the chiefest part of the fruit and profits of the lands thus manured by the Ceorls or Husbandmen redounded to the benefit of their Lords and not of the Ceorls themselves the Romans counted them to be as bondmen and not freemen Caesar therefore speaking of them while they were yet in Germany saith Plebs pene servorum habebatur loco That their common people were in a manner bondmen And Tacitus to the same purpose Caeteris servis meaning these Ceorls or Husbandmen non in nostrum morem descriptis per familiam ministeriis utuntur suam quisque sedem suos penates regit Frumenti modum Dominus aut pecoris aut vestis ut colono injungit Et servus hactenus paret But this service was no bondage For the Ceorl or Husbandman might as well leave this land at his will as the Lord might put him from it at his will and therefore it was provided by the laws of Ina in what manner he should leave the land when he departed from it to another place And the Writ of Waste in Fitz-Herbert seemeth to shew that they might depart if they were not then well used It is apparent also that the Ceorl was of free condition for that his person was valued as a member of the Common-wealth in the laws of Aethelstan and his least valuation is there reckoned to be 200s. whereas the Bondman was not valued at all for that he was not as I said any part of the Common-wealth but of his Master's substance nor was he capable of any publick office But the Ceorl tho' he had no land might rise to be the leader of his Country-men and to use the armour of a Thane or Knight viz. an Helmet an Habergeon and a gilt Sword And if his wealth so increased as that he became owner of five hides of land the valuation of his person which they call'd his Were or Weregild was increased to two thousand thrimsas that is six thousand shillings and being then also adorned with other marks of dignity he was counted for a Thane as you shall see in the next Chapter But for all this a Ceorl or Husbandman tho' he were a Freeman was not by the Feodal law of that and later times capable of a Knights-fee or land holden by military service and therefore what land soever he purchased was to be intended land of no such tenure And it appeareth further by the laws of Aethelstan that the five hides of land before mentioned purchased by the Ceorl were descendable to his posterity which sheweth also that they were not feodal land for that feuds at that time were not here descendable as we have often declared So that I hope I may conclude that the Ceorls or Husbandmen among the Saxons held no land by our tenure of Knight-service CHAP. VIII Of Thanes and their several kinds SEeing then the weight of the question will rest wholly upon the
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
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 any other For at Ebsa in Suthry under the title of Ric. fil Comitis Gisleberti it saith Hanc terram tenuerunt novem Teigni cum ea poterant utere quo volebant Plain Latin but the sense is That nine Thanes held this land of Ebsam in the time of Edward the Confessor and might do with it what they would So at Est-Burnham in Buckinghamshire under the title of Milo Crispin Duo Teigni homines Brictrici hanc terram tenuerunt vendere potuere and here it seemeth that these Thanes were not the Kings Thanes but of the lesser sort for that he calleth them homines Brictrici So in the same Shire under the title of S. Petr. Westmon it is said of the same Town of Est-Burnham Hoc manerium tres Treigni Tempore Regis Edwardi tenuerunt vendere potuerunt It there also appeareth that the Thane-land might be charg'd with a rent issuing out of it for it immediately followeth tamen ipsi tres reddiderunt quinque oras de consuetudine And it might be restrain'd from alienation as where it is said in Doomsday De ea viz. Lega Pelton sunt in dominio duae hidae una ex hiis fuit Tainland non tamen poterat ab Ecclesia separari Where the word tamen implyeth that altho' Thane-lands might otherwise be alienated yet this particularly could not So likewise might it be entailed upon a Family as appeareth in the laws of Alured Cap. 37. But thus Doomsday after the Conquest affirmeth the same that the Charters did before the Conquest And the words both in the one and the other which shew that the Thane might sell or use this land as he would do imply an estate of inheritance independant of any Lord either feodal or superior and was as even the Alodium mentioned in the Chapter of Thanes but whether it were descendable only upon the eldest son or dividable between all the sons as in Gavelkind I cannot say but the formula of Alodium join'd with Marculfus doth divide it between them all CHAP. XII The fruits of Feodal Tenures and that they were not sound among the Saxons or not after our manner HItherto we have sought our Tenures among the Saxons and have not found them tho' the Report telleth us It is most manifest that they were frequent and common in the times of the Saxons We will now follow the direction of our Saviour and see if by the fruit we can find the tree The Report saith by question and answer The fruits of the Tenure viz. in Capite and Knights-service what are they but the 1 Profits of the lands 2 Wardship 3 Livery 4 Primier seisin 5 Relief mistaken to be an Heriot 6 Fine for alienation and the rest Which rest it supplyeth shortly after to be 7 Homage 8 Fealty 9 Escuage Adding again Relief and Wardship instead whereof I out of a third passage do place 10 Escheats And it concludeth that As all these tenures were common in those times so were all the fruits of them c. Which if it be true the question is determined nay I yield it if any one of them agreeing directly with our Tenures be found amongst them some shew of Fealty and Licence to alien lands granted for a certain time only excepted for avoiding captious disputation Their very names pretend no Saxon antiquity but as the Ephramites bewrayed their Tribe by their Language so by their names these fruits discover themselves to be of Norman progeny And the Report doth not give us one instance or example of any of them in all the Saxon times If it did the words before mention'd in the Charters to the Thanes declaring that their land must be libera ab omni seculari gravedine c. sweep all away at once as the West-wind did the Grashoppers in Egypt and do make the Thane-lands to have the priviledge of Alodium here before mention'd to belong unto them that is to be free from all tenure and service It is true notwithstanding that both the greater and lesser-Thanes might have and had other lands besides these that were hereditary of feudal nature and holden by military service as in the Charter of Oswald the Bishop shall after appear but they holding them like Folcland only at the will of the Lord whether King or other or for certain years or at most for life or lives their Tenure and Feuds determin'd with the will of the Lord the term of years or estate for life And then could not any of the fruits before spoken of accrue unto the Lord that granted the land for that it forthwith reverted intirely into his own hands and was to be kept and dispos'd a-new as pleas'd him It is apparent therefore by this general demonstration that the fruits we speak of could not arise out of either of the Thane-lands were they temporary or hereditary if not haply fealty or some gratuity to the Lord for licence that the temporary Tenant might assign his interest or have it enlarg'd things proper as well to Socage and Folcland as to Feudal But let us examine all these fruits particularly and see whether and how we find any of them among the Saxons and give me leave herein to produce them in such order tho' not logical as the Report presenteth them to the Reader in their several places CHAP. XIII No profit of Land by Wardship in the Saxons time AS for the profits of the land which the King hath now during the minority of a Ward it is manifest that the Kings then had no such of the Thane-lands for that the Thane had this particular priviledge that when he dy'd he might make his Will of his own lands as it formerly appeareth and give them unto whom he would which was never lawful after the coming of the Normans for any Baron or Tenant by Knight-service to do till the statute 32. Hen. VIII Cap. 1. gave free liberty to all men to devise all Socage-land by their last Will in writing and no more than two parts only of land holden in Capite or by Knight-service least it should hinder the Lords too much of their Feodal profits And Socage-lands were therefore long before devisable in many Burroughs for that thereby the Lord sustain'd no such prejudice But to conclude this point in one word it shall I hope be made manifest in the next Chapter that there were no Wardships amongst the Saxons and thereupon it will follow invincibly there could be then no profits of lands arising to the King or Lords by title of Wardship CHAP. XIV No Wardship in England amongst the Saxons Objections answered IN following the Report I must now speak de causa post causatum of Wardship after the Profits of land growing by it This being the chiefest fruit of all feodal servitudes and the root from whence many branches of like grievances take their original the Report laboureth more to prove it to
filiam cujusdam viri Vlfi quem concupiverat maritali sibi foedere copulare Here it appeareth that the King's Licence or good will was sought but the reason appeareth not The good will of King Solomon was sought that Abishag might be given to Adoniah for his wife but not in respect of Tenure in either case It is an express law of King Canutus Ll. 72. ne nyde man naðer ƿif ne maeden c. That no man should constrain either woman or maid to marry otherwise than where they will nor shall take any mony for them unless by way of thankfulness some do give somewhat If these passages carry any shew of Wardship I must still let you know that Knights Fees were not at this time descendable unto Women by the Feudal law no nor long after when they were become hereditary in the masculine line Ne à Lancea ad fusum haereditas pertransiret as you may see by Cujacius in feud Lib. 1. Tit. 1. The first law that I meet with touching Feudal marriages is in Magna Charta Libertatum Hen. I. yet is there nothing spoken of marrying the heir male of the Kings Tenant within age And touching the female issue it is only provided that the King should be so far acquainted with their marriage as that he might be assur'd they should not marry with his enemies lest the feuds or feifs which were given for service against them should by this occasion be transferr'd to them Hear the words of the Charter Et si quis Baronum meorum vel aliorum hominum meorum siliam suam nuptui tradere voluerit sive sororem suam sive neptem sive cognatam mecum inde loquatur sed nec ego aliquid de suo pro hac licentia accipiam nec defendam ei quin eam det excepto si eam velit jungere meo inimico Et si mortuo Barone vel alio homine meo filia haeres remanserit sine liberis fuerit dotem suam maritationem habebit eam non dabo marito nisi secundum velle suum c. Ordaining that the Wife shall be Guardian of the Childrens lands or some near kinsman qui justus esse debet and that other Lords observe the like courses touching their Wards Thus among the Normans but I don't find in all the Feodal law of these times any thing sounding to this purpose nor any mention of Marriage or Wardship of the body or lands I take them therefore to have risen from the Normans a little before their coming into England but in a diverse manner according to the diversity of the places and the moderate or covetous disposition of the Lords For it seemeth that tho' the profits of the land belong'd wholly to the Lord and were therefore ordinarily so taken by him yet some of the Lords deducting only the charge of Education of the Ward and just allowances restor'd him his lands at full age with the surplusage upon accompt And the Grantee of a Wardship from the King was in Normandy tyed to do it as appeareth by the 215. Artic. of the reformed Customes for otherwise they were not Guardians properly and Tutores rei pupillaris but fructuarii rather and suum promoventes commodum See the Comment to that Article So in point of Feodal marriage it seemeth that the Charter of Henry I. was grounded upon the Norman Custom which tho it required the consent of the Lord in tendring of Marriage to Women for the reason aforesaid yet did it not permit either him or the kindred or friends whom they called the parents to make it venal or to take any thing for the same as you may see by divers passages there and by a case adjudged in the Comment to the 228. Article where the Tutor or Guardian and the Parents and Friends thus offending are all condemn'd to pay costs and damages And note that according to the Norman custom the consent of the Parents viz. the next kindred and friends was as requisite as the consent of the Lord or Tutor which as I conceive gave the occasion of the words Si parentes conquerantur in the Statute of Merton as in respect of the ancient right they had in consenting to the Marriage And insomuch as we don't find that the various usages touching Wardship and Marriage were compos'd into an uniform law till Magna Charta Henr. III. did determine it it may be conceiv'd to have been the reason that Rand. Higden before mention'd and our other Authors did ascribe this part of our Feodal Law to be introduced by Henry III. But it is manifest by Glanvil that it was in use in Henry II's time and by the Charter of Henry I. to have been so likewise under William Rufus yet is there nothing hitherto any way produc'd to bring it from the Saxons or to shew it to have been in use amongst them CHAP. XVI No Livery no Primer Seisin IF the King's Tenant in capite or by Knight-service dieth the King shall have his lands till the heir hath done homage which if he be of full age he may do presently but if he be under age the land must continue in the King's hands till his full age And when either the one or the other sueth to have it out of the King's hands his obtaining it is called Livery and the profits receiv'd in the mean time by the King are call'd his Primer Seisin But neither of these could be among the Saxons for that their hereditary lands were not Feodal but libera ab omni gravedine as before we have shew'd And their temporary lands could not be subject to it for that their Estate extended no farther then to a Franck Tenement And neither the one or the other was then tyed to do Homage as shall appear when we speak of Homage After the coming of the Normans they were presently afoot amongst us even in William Rufus's days but uncertain and irregular which was a certain note of their novelty and that Feuds hereditary were new begun The great Charter of Liberties granted by Henry I. implyeth as much where to moderate them the King saith thus Si quis Baronum meorum seu Comitum sive aliorum qui de me tenent mortuus fuerit haeres suus non redimet terram suam sicut faciebat tempore fratris mei sed legitima justa relevatione relevabit eam Similiter homines Baronum meorum justa legitima relevatione relevabunt terras suas de Dominis suis I take this redeeming of the land out of the King's hands to be a Composition for his Primer Seisin and for the Livery and Relief things uncertain at this time even in their Norman appellations and not likely therefore to be known unto the Saxons CHAP. XVII That Reliefs whereon the Report most relyeth were not in use among the Saxons nor like their Heriots OF all the Feodal profits alledged in the Report to be receiv'd
by the Saxons it casteth anchor chiefly on Reliefs as a thing most evident and unanswerable the rest save Wardship it scarcely fortifieth with a breath besides the bare assertion This it saith was common and in pursuit thereof addeth these words For Reliefs we have full testimony in the Reliefs of their Earls and Thanes for which see the laws of King Canutus Cap. 68 and 69. the laws of Edw. the Confessor cap. de Heretochiis and what out of the book of Doomsday Coke hath in his Instit Sect. 103. Camden in Berkshire Selden in Eadmer 154. Great authorities secumque Deos in praelia ducunt We must not meddle with them all at once let us try them singly The law cited out of Canutus is in these words And beon ða heregeata Let the heriot which was to be paid after the death of great men be according to their dignities An Earl's eight Horses four sadled and four unsadled four Helmets four Corslets eight Spears and as many Shields four Swords and two hundred marks of Gold The heriot of a Thane next to the King four Horses two sadled and two unsadled two Swords four Spears four Shields one Helmet one Corslet and fifty marks Of the inferiour or midling Thane an Horse furnished and his weapon c. And he that less hath and less may let his heriot be two pound Here is speech indeed of an heriot but none of Relief I shall anon shew the difference between them and then hath this law nothing against me Touching the law alledged to be Edward the Confessor's the words be these Qui in bello ante Dominum suum ceciderit sit hoc in terra sit alibi sint ei relevationes condonatae c. Here I confess is mention of Reliefs but I deny this to be the law of Edward the Confessor 't is true that it is published by Lambard among his receiv'd laws but if you mark it in a differing letter as noting it to be an addition In an ancient MS. therefore which I have of those laws it is not sound nor in the printed copy of Roger Hoveden who wrote till the third year of King John that is 134. years after the Confessor's time with reverence therefore be it spoken it is mistaken both in the Report and by my Ld. Coke himself whom it followeth if they say that these words were part of the law of Edw. the Confessor yea the text it self maketh ..... of William the younger call'd Rufus But to conceal no truth it is delivered by Jornalensis Monachus in the very same words as a law of an elder King amongst us than the Confessor namely of Canutus our Danish King who in the 157. Chap. of his laws speaking of one slain in battel in the presence of his Lord saith expresly Sint ei relevationes condonatae Now the game seemeth to be wonn but stay a while and remember what I said before of the translations of our Saxon Laws and Charters into Latin The Saxons and the Danes whose Language and Laws differ'd little in those days wrote their Laws only in their own tongue and the translating of them hath begotten much variety and many controversies we must therefore resort to the original Saxon where this passage is in the 75 th Chap. of the second part of his Laws in these words se man ðe aet ðam syâ—dung toforan his hlaâ—ord â—ealle sy hit innan lande sy hit of lande beon herogeata forgyfene which is thus verbatim The man that in a military Voyage is slain before or in the presence of his Lord be it upon land or off of land let the Heriots be forgiven him He saith not let the Releifs but let the Heriots be forgiven him and I deny not but this might be one of the Danish Laws which Edward the Confessor took out of Canutus's Laws when he compos'd the Common Law out of the West Saxon Law Mercian Law and Dane Law if the copies of them were extant and it is very probable that William the Conquerour or one of his sons did turn that Law of Heriots into this of Reliefs For that which my Lord Coke hath out of Doomsday is the same which Mr. Cambden hath in Barkshire touching all that County Vt Tainus vel Miles Regis Dominicus moriens pro releviamento dimittebat Regi omnia arma sua Equum unum cum sella alium sine sella quod si essent canes vel accipitres praestabantur Regi ut sivellet acciperet Here is releviamentum us'd in the Conquerour's time which I doubt not but our Question is of it in the time of the Saxons That also cited by and out of Mr. Selden is of the same nature and one answer therefore serveth to all the three Yet by way of corollary I shall anon discover another error of this sort rising even from Doomsday it self and the Normans possessing this Kingdom of the Saxons but not well instructed in their Laws and Customs which is as followeth CHAP. XVIII Difference between Heriots and Reliefs HEriots were usual among the latter Saxons Reliefs among the elder Normans before their coming into England This according to the custom of the Feudal Law and other Nations that ordain'd by Ludovicus al. Clodoveus King of France about the year 511. to tame the Almans whom he then had brought to servitude I find it not in England till the Soveraigntie of the Danes The first Laws which I find that mention it are those of Canutus before mentioned who perhaps for the assurance of his throne us'd this politick device to have all the Armour of the Kingdom at his disposition in this manner when he had dismissed his Danish Army But it falling so out as the Heriot being to be paid at or after the death of the Old Tenant and the Relief at or before the entry of the new the Normans in this did like our Ancestors the Saxons who because our Christian Pascha or Passover fell out yearly to be celebrated about the time of the Feast of their Idol Easter call'd our Passover by the name of their Easter so they seem to have conceiv'd the Saxon heriot to be the same that their Norman Relief was and therefore translated the word heriot by Releviamentum or Relevium and raising the form of their Feudal Law in England drew the Saxon customs to cohere therewith as much as might be But there is great difference between Heriots and Reliefs for Heriots were Militiae apparatus which the word signifieth and devised as I said before to keep the conquered Nation in subjection and to support the publick strength and military furniture of the Kingdom the Reliefs for the private commodity of the Lord that he might not have inutilem proprietatem in the Seignory The Heriots were therefore properly paid in habiliments of war the Reliefs usually in money The Heriot for the Tenant that died and out of his goods the Relief for the Tenant
that succeeded and out of his purse The Heriot whether the son or heir enjoy'd the land or not the Relief by none but him only that obtain'd the land in succession The Heriot whether the land were fallen into the Lord's hands or not the Relief in old time not unless it were fallen and lay destitute of a Tenant whose taking of it up out of the Lord's hands was in that sense called Relevium or Relevatio a taking up of that was fallen according to the French word Reliefe Bracton well observ'd the difference saying Fit quaedam praestatio quae non dicitur Relevium sed quasi sicut Heriotum quasi loco Relevii quod dari debet aliquando ante sacramentum fidelitatis aliquando post Hotoman saith Relevium dicitur honorarium munus quod novus Vassallus Patrono introitus causa largitur quasi morte alterius Vassalli vel alio quo casu feudum ceciderit quod jam à novo sublevetur Nov. Leo. 13. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 nominat I stand the longer herein for that not only the Report but even Doomsday it self and generally all the ancient Monkish writers have confounded Heriots and Releifs Yet might I have saved all this labour for nothing can make the difference more manifest than that we often see both of them are together issuing out of the same land But when all is done neither is Heriot nor Releif any badge of land holden by Knight's-service or in Capite for both of them are found in lands of ordinary Socage Yet I confess that Bracton saith de soccagio non datur Relevium and a little before de soccagio non competit domino Capitali Custodia nec homagium ubi nulla Custodia nullum Relevium sed è contra But this serveth my turn very well for that they in the Report having fail'd to prove that Releifs were in use in the Saxons time whereof they affirm'd they had full testimony it now inferreth on my behalf that if Releifs and Wardships were not in use among the Saxons that then also Tenure by Knight-service was not with them Besides all this the Heriot was a certain duty and settled by Law the Relief so various and uncertain as the Lords exacted what they listed for it when it fell into their hands constraining the heir of the Tenant as it were to make a new purchase of their Feud whereupon the Feudists called this Releif not only Renovatio and Restauratio feudi in Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 turning or bringing back of the Feud to the former condition or proper nature of it but also Redemptio a ransoming of it out of the Lord's hands That it thus stood with us in England by and by after the Conquest appears by that we have shewed before out of the Magna Charta of Henry I. CHAP. XIX No Fines for Licence of Alienation TOuching Fines for Licence of Alienation it is not said what kind of Tenants among the Saxons did pay them nor for what kind of land they were paid The Thane-land hereditary is apparently discharg'd thereof by the ordinary words of their Charters before mention'd where 't is said that the owners of lands may give and bequeath them cuicunque voluerint and that freely ab omni munduali obstaculo Doomsday also as we here shewed doth testifie as much and so doth the very word Alodium which the ancient Authors attribute to these lands So that the Thane-lands doubtless were free both from the Fine and Licence But as touching Folcland and land holden at will of the Lord tho' continued in ancient time to their children after the manner of Copy-holds it is no question but that they might both have Licence for aliening such lands and also pay consideration for it as our Copy-holders do at this day I find that one Brictrick in the time of King Etheldred about the year 984. bequeath'd legacies of good value unto his Lord's wife to intreat her Husband that this Brictrick's Will whereby he had devised many lands and goods to Monasteries and divers men might stand And that Thola the widow of Vrke a Thane of Edward the Confessor obtain'd licence from the same King Edward that she might devise both her lands and goods to the Monastery of Abbotsbury But of what nature these Licences were whether to alienate the land or to make a Will or to give the land to Monasteries as in Mortmain I cannot determine If they only intended alienation then I understand them only of Lands holden according to the custom of the time at will of the Lord or Folcland Yet in that Thola's Licence was as well to bequeath her goods expresly as her lands the Licence seemeth to be given therefore to make a Will which no man then could do if not a Thane Quaere But howsoever it be expounded it must not be extended to the Thane-lands or land hereditary for the reasons before alledged And as touching Fines for Licence of Alienation after our manner which the Report suggesteth they could not doubtless be in use among the Saxons for there are not found as I suppose here among us before the time of Edward I. and not established afterwards 'till 1. Edw. III. where the King granteth that from thenceforth lands holden in Chiefe should not be seized as forfeited which formerly they were for Alienation without Licence but that a reasonable Fine should be taken for the same See the Statute CHAP. XX. No Feodal Homage among the Saxons OUr word Man and homo in Latin have for many ages in old time been used by the German and Western Nations for a Servant or Vassal And from thence hominium and vassaticum afterwards homagium was likewise used for hominem agere to do the office or duty of a servant not to signifie Manhood as some expound it and so also Vassalagium But by little and little all these latter words have been restrain'd to note no more than our ceremonial homage belonging properly unto Tenures which I met not with among our Saxons nor any shew thereof in former ages unless we shall fancy that the Devil had it in his eye when he offered to give unto our Saviour all the Kingdoms of the world if he would fall down and worship him For here he maketh himself as Capital Lord our Saviour as the Feodal Tenant the Kingdoms of the world to be the Feud the falling or kneeling down to be the homage and the worshipping of him consisting as the Feodists expound it in six rules of service to be the Fealty Pardon me this idleness but from such missemblances rise many errors Homage as we understand it in our Law is of two sorts one more ancient than the other called homagium ligeum as due unto the King in respect of Soveraignty and so done more Francico to King Pipin by Tassilo Duke of Bavaria about the year 756. The other homagium feodale or praediale belonging to
every feodal Lord and not begun in France 'till Feuds were there made hereditary by Hugh Capet nor in England till William the Conqueror did the like as before appears The reason of it was to preserve the memory of the Tenure and of the duty of the Tenant by making every new Tenant at his entry to recognize the interest of his Lord lest that the Feud being now hereditary and new heirs continually succeeding into it they might by little and little forget their duty and substracting the services deny at last the Tenure it self We see at this day frequent examples of it for by neglecting of doing homage and those services Tenures usually are forgotten and so revolv'd to the King by Ignoramus to the great evil of their posterity that neglect it But the Saxons having only two kind of lands Bocland and Folcland neither of them could be subject unto homage for the Bocland which belong'd properly to their greater Thanes tho' it were hereditary yet was it alodium and libera ab omni seculari gravedine as before is shewed and thereby free from homage And the Folcland being not otherwise granted by the King or his Thanes than at will or for years or for life the tenant of it was not to do any homage for it For Justice Littleton biddeth us note that none shall do homage but such as have an estate in fee simple or fee taile c. For saith he 't is a maxim in law that he which hath an estate but for term of life shall neither do homage nor take homage But admit the Saxons had the ceremony of doing homage among them yet was it not a certain mark of Knights-service for it was usual also in Socage-Tenure And in elder ages as well a personal duty as a praedial that is done to Princes and great Men either by compulsion for subjection or voluntary for their protection without receiving any feud or other grant of land or benefit from them And he or they which in this manner put themselves into the homage of another for protection sake were then called homines sui and said commendare se in manus ejus or commendare se illi and were thereupon sometimes called homines ejus commendati and sometimes commendati without homines as in Doomsday often Tho' we have lost the meaning of the phrase yet we use it even to this day Commend me unto such a man which importeth as much as our new compliment taken up from beyond the Seas let him know that I am his servant See the quotations here annexed and note that tho' the Saxons did as we at this day call their servants and followers homines suos their men yet we no where find the word Tenure or the ceremony of homage among them nor any speech of doing or of respiting homage CHAP. XXI What manner of Fealty among the Saxons SO for Fealty if we shall apply every oath sworn by Servants and Vassals for fidelity to their Lord to belong unto Fealty we may bring it from that which Abraham imposed upon his servant put thy hand under my thigh and swear c. For the Saxons abounded with oaths in this kind following therein their Ancestors the Germans who as Tacitus saith took praecipuum Sacramentum a principal oath to defend the Lord of the Territory under whom they lived and to ascribe their own valour to his glory So likewise the homines commendati before mention'd yea the famuli ministeriales and houshold servants of Noble persons were in ancient times and within the memory of our fathers sworn to be faithful to their Lords These and such other were anciently the oaths of Fealty but illud postremo observandum saith Bignonius a learned French-man of the King 's great Council fidelitatem hodie quidem feudi causa tantum praestari shewing farther that Fealty was first made to Princes by the Commendati and Fideles without any feud given unto them and that the Princes afterwards did many times grant unto them feuda vacantia as to their servants but whether the oath of fealty were so brought in upon feodal tenants or were in use before he doth not determine In the mean time it hereby appeareth that fealty in those days was personal as well as feodal or praedial which imposeth a necessity upon them of the contrary part in the Report that if they meet with fealty among the Saxons they must shew it to be feodal and not personal for otherwise it maintaineth not their assertion I will help them with a pattern of fealty in those times where Oswald Bishop of Worcester granting the lands of his Bishoprick to many and sundry persons for three lives reserv'd a multitude of services to be done by them and bound them to swear That as long as they held those lands they should continue in the commandments of the Bishop with all subjection I take this to be an oath of Fealty but we must consider whether it be personal or praedial If personal it nothing then concerneth Tenures and consequently not our question If praedial then must it be inherent to the land which here it seemeth not to be but to arise by way of contract And being praedial must either be feodal as for land holden by Knight-service or Colonical as for lands in Socage If we say it is feodal then must there be homage also as well as fealty for homage is inseperable from a feud by Knight-service but the estates here granted by Oswald being no greater than for life the Grantees must not as we have shewed either make or take homage And being lastly but Colonical or in Socage it is no fruit of a Tenure in Capite by Knight-service nor belonging therefore to our question So that if fealty be found among the Saxons yet can it not be found to be a fruit of Knight-service in Capite as the Report pretendeth it See Fidelitas in my Glossary CHAP. XXII No Escuage among the Saxons What in the Empire THe word Scutagium and that of Escuage is of such novelty beyond the Seas as I find it not among the feudists no not among the French or Normans themselves much less among the Saxons Yet I meet with an ancient law in the Novella of Constantine Porphyrogenita Emperour of Greece in the year 780. that gives a specimen of it tho' not the name Quaedam esse praedia militaria quibus cohaereat onus Militiae ita ut possessorem necesse sit se ad militiam comparare domino indicante delectum vel si nolit aut non possit se ad delectum exhibere certam eo nomine pecuniam fisco dependere quae feudorum omnium lex est c. This tells us that there were certain lands to which the burden of warfare was so adherent that every owner of them was tyed upon summons made by his Lord to make his appearance therein or else to pay certain money by way
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.
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
on these days as by the same phrase in other Laws shall by and by appear which the Gloss also upon this Canon maketh manifest saying In his etiam diebus causae exerceri non debent citing the other Canon here next before recited but adding withal that the Court and Custume of Rome it self doth not keep Vacation from Septuagesima nor as it seemeth in some other of the days And this precedent we follow when Septuagesima and Sexagesima fall in the compass of Hilary-Term CHAP. VI. That our Terms took their Original from the Canon-Law THus we leave the Canon Law and come home to our own Country which out of these and such other forreign Constitutions for many more there are have framed our Terms not by choosing any set portion of the year for them as Polydore Virgil and our Chroniclers ignorantly suggest but by taking up such times for that purpose as the Church and common Necessity for collecting the fruits of the Earth left undisposed of as in that which followeth plainly shall appear CHAP. VII The Constitution of our Saxon Kings in this matter INas one of our ancient Saxon Kings made a very strict Law against working on Sunday And Alured instituted many Festivals but the first that prohibited Juridical proceedings upon such days was Edward the Elder and Guthrun the Dane who in the League between them made about ten years before the Council of Erpford that it may appear we took not all our light from thence did thus ordain Ordel aþas syndon tocÆ¿edon freols dagum rihtfaesten dagum c. We forbid that Ordel and Oaths So they called Law-tryals at that time be used upon Festival and lawful Fasting days c. How far this Law extended appeareth not particularly no doubt to all Festival and Fasting-days then imposed by the Roman Church and such other Provincial as by our Kings and Clergy were here instituted Those which by Alured were appointed to be Festivals are now by this Law made also days of Vacation from Judicial Tryals yet seem they for the most part to be but Semi-Festivals as appointed only to free-men not to bond-men for so his Law declareth viz. The twelve days of Christmass the day wherein Christ overcame the Devil the Anniversary of St. Gregory the seven days afore Easter and the seven days after the day of St. Peter and St. Paul and the whole week before St. Mary in Harvest and the Feast-day of All-Saints But the four Wednesdays in the four Ember weeks are remitted to Bond-men to bestow their work in them as they thought good To come to that which is more perspicuous I find about sixty years after a Canon in our Synod of Eanham under King Ethelred in these words First touching Sunday Dominicae solempnia diei cum summo honore magnopere celebranda sunt nec quicquam in eadem operis agatur servilis Negotia quoque secularia quaestionesque publicae in eadem deponantur die Then commanding the Feast-days of the B. Virgin and of all the Apostles the Fast of the Ember days and of the Friday in every week to be duely kept it proceedeth thus Judicium quippe quod Anglicè Ordeal dicitur juramenta vulgaria festivis temporibus legitimis jejuniis sed ab Adventu Domini usque post Octabas Epiphaniae à Septuagesima usque 15. dies post Pascha minime exerceantur sed sit his temporibus summa pax concordia inter Christianos sicut fieri oportet It is like there were some former Constitutions of our Church to this purpose but either mine eye hath not light upon them or my memory hath deceived me of them CHAP. VIII The Constitution of Canutus more particular CAnutus succeeding shortly by his Danish sword in our English Kingdom not only retained but revived this former Constitution adding after the manner of his zeal two new Festival and Vacation days And Æ¿e forheodað ordal aðas freols dagum ymbren dagum rite faesten dagum fram Adventum domini oþ se eahtoþa dag agan sy ofer tÆ¿elfta daeg c. We forbid Ordal and Oaths on Feast-days and Ember-days and in Lent and set fasting days and from the Advent of our Lord till the eighth day after the twelfth be past And from Septuagesima till fifteen nights after Easter And the Sages have ordained that St. Edward's day shall be Festival over all England on the fifteenth of the Kalends of April and St. Dunstan's on the fourteenth of the Kalends of June and that all Christians as right it is should keep them hallowed and in peace Canutus following the Synod of Eanham setteth down in the Paragraph next before this recited which shall be Festival and which Fasting-days appointing both to be days of Vacation Among the Fasting-days he nameth the Saints Eves and the Fridays but excepteth the Fridays when they happen to be Festival-days and those which come between Easter and Pentecost as also those between Midwinter so they called the Nativity of our Lord and Octabis Epiphaniae So that at this time some Fridays were Law-days and some were not Those in Easter Term with the Eve of Philip and Jacob were and the rest were not The reason of this partiality as I take it was they fasted not at Christmass for joy of Christ's Nativity nor between Easter and Whitsuntide for that Christ continued upon the Earth from his Resurrection till his Ascension And the children of the wedding may not fast so long as the Bridegroom is with them Nor till Whitsuntide for joy of the coming of the Holy Ghost CHAP. IX The Constitution of Edward the Confessor most material SAint Edward the Confessor drew this Constitution of Canutus nearer to the course of our time as a Law in these words Ab Adventu Domini usque ad Octabas Epiphaniae pax Dei sanctae Ecclesiae per omne Regnum similiter à Septuagesima usque ad Octabas Paschae item ab Ascensione Domini usque ad Octabas Pentecostes item omnibus diebus quatuor temporum item omnibus Sabbatis ab hora nona tota die sequenti usque ad diem Lunae item Vigiliis Sanctae Mariae Sancti Michaelis Sancti Johannis Baptistae Apostolorum omnium Sanctorum quorum solennitates a Sacerdotibus Dominicis â—nnunciantur diebus omnium Sanctorum in Kalendis Novembris semper ab hora nona Vigiliarum subsequenti solennitate Item in Parochiis in quibus dedicationis dies observatur item Parochiis Ecclesiarum ubi propria Festivitas Sancti celebratur c. The Rubrick of this Law is De temporibus diebus pacis Regis intimating Term-time and here in the Text the Vacations are called Dies pacis Dei sanctae Ecclesiae as I said in he beginning But pax Dei pax Ecclesiae pax Regis in other Laws of Edward the Confessor and elsewhere have other significations
the others lost their priviledge and came to be Term-days I cannot find it sufficeth that Custome hath repealed them by confession of the Canonists Yet it seemeth to me there is matter for it in the Constitutions of our Church under Islepe Arch-bishop of Canterbury in the time of Edward III. For tho' many ancient Laws and the Decretals of Gregory IX had ordained Judicialem strepitum diebus conquiescere feriatis yet in a Synod then holden wherein all the holy-days are appointed and particularly recited no restraint of Judicature or Forensis strepitus is imposed but a cessation only ab universis servilibus operibus etiam Reipublicae utilibus Which tho' it be in the phrase that God himself useth touching many great Feasts viz. Omne servile opus non facietis in iis yet it is not in that wherein he instituteth the seventh day to be the Sabbath Non facies omne opus in eo without servile Thou shalt do no manner of work therein Now the Act of Judicature and of hearing and determining Controversies is not opus servile but honoratum plane Regium and so not within the prohibition of this our Canon which being the latter seemeth to qualifie all the former Yea the Canonists and Casuists themselves not only expound opus servile of corporal and mechanick labour but admit twenty six several cases where even in that very kind dispensation lieth against the Canons and by much more reason then with this in question It may be said that this Canon consequently giveth liberty to hold plea and Courts upon other Festivals in the Vacations I confess that so it seemeth but this Canon hath no power to alter the bounds and course of the Terms which before were settled by the Statutes of the Land so that in that point it wrought nothing But here ariseth another question how it chanceth that the Courts sit in Easter-Term upon the Rogation-days it being expresly forbidden by the Council of Medard and by the intention of divers other Constitutions It seemeth that it never was so used in England or at least not for many ages especially since Gregory IX insomuch that among the days wherein he prohibiteth Forensem strepitum clamourous pleading c. he nameth them not And tho' he did yet the Glossographers say that a Nation may by Custom erect a Feast that is not commanded by the Canons of the Church Et eodem modo posset ex consuetudine introduci quod aliqua quae sunt de praecepto non essent de praecepto sicut de tribus diebus Rogationum c. To be short I find no such priviledge for them in our Courts as that they should be exempt from suits tho' we admit them other Church rites and ceremonies We must now if we can shew why the Courts sitting upon so many Ferial and holy-days do forbear to sit upon some others which before I mention'd the Purification Ascension St. John Baptist All-Saints c. For in the Synod under Islepe before mention'd no prerogative is given to them above the rest that fall in the Terms as namely St. Mark and St. Philip and Jacob when they do fall in Easter-Term St. Peter in Trinity-Term St. Luke and SS Simon and Jude in Michaelmass-Term It may be said that although the Synod did only prohibit Opera servilia to be done on Festival-days as the offence most in use at that time yet did it not give licence to do any Act that was formerly prohibited by any Law or Canon And therefore if by colour thereof or any former use which is like enough the Courts did sit on lesser Festivals yet they never did it on the greater among which as majoris cautelae gratia those Opera servilia are there also prohibited to be done on Easter-day Pentecost and the Sunday it self Let us then see which are the greater Feasts and by what merit they obtain the priviledge that the Courts of Justice sit not on them As for Sunday we shall not need to speak of it being canonized by God himself As for Easter and Whitsunday they fall not in the Terms yet I find a Parliament held or at least begun on Whitsunday But touching Feasts in general it is to be understood that the Canonists and such as write De Divinis Officiis divide them into three sorts viz. Festa in totum duplicia simpliciter duplicia semiduplicia And they call them duplicia or double Feasts for that all or some parts of the service on those days were begun Voce Duplici that is by two singing-men whereas on other days all was done by one Our Cathedral Churches do yet observe it I mean not to stay upon it look the Rationale which Feasts were of every of these kinds The ordinary Apostles were of the last and therefore our Courts made bold with them But the Purification Ascension St. John Baptist with some others that fall not in the Term were of the first and because of this and some other prerogatives were also called Festa Majora Festa Principalia dies novem Lectionum ordinarily double Feasts and Grand days Mention is made of them in an Ordinance 8. Edw. III. That Writs were ordained to the Bishops to accurse all and every of the perturbers of the Church c. every Sunday and double Feast c. But we must needs shew why they were called Dies novem Lectionum for so our old Pica de Sarum styleth them and therein lyeth their greatest priviledge After the Arian Heresie against the Trinity was by the Fathers of that time most powerfully confuted and suppressed the Church in memory of that most blessed victory and for better establishing of the Orthodox Faith in that point did ordain that upon divers Festival-days in the year a particular Lesson touching the nature of the Trinity besides the other eight should be read in their service with rejoycing and thanksgiving to God for suppressing that horrible Heresie And for the greater solemnity some Bishop or the chiefest Clergy-man present did perform that duty Thus came these days to their styles aforesaid and to be honoured with extraordinary Musick Church-service Robes Apparel Feasting c. with a particular exemption from Law-Tryals amongst the Normans who therefore kept them the more respectively here in England Festa enim Trinitatis saith Belethus digniori cultu sunt celebrandi In France they have two sorts of Grand days both differing from ours First they call them Les Grand jours wherein an extraordinary Sessions is holden in any Circuit by virtue of the King's Commission directed to certain Judges of Parliament Secondly those in which the Peers of France hold once or twice a year their Courts of Haught Justice all other Courts being in the mean time silent See touching these Loyseau De Seigneures To come back to England and our own Grand days I see some difference in accounting of them
execution of the Writs he received from them And I take it that in old time they were the ordinary days set to the Defendants for Appearance every one of them being a sennight after another to the end that the Defendant according to his distance from the place where he was to appear might have one two three or more of these Returns that is so many weeks for his Appearance as he was Counties off in distance from the Court where he was to appear This is verified by the Law of Ethelred the Saxon King in case of vouching upon Trover Gif he cenne ofer an scira haebbe an Æ¿ucena fyrrst gif he cenne ofer tÆ¿a scira haebbe tÆ¿a Æ¿ucena fyrst gif he cenne ofer iii. scira haebbe iii. Æ¿ucena fyrst Ofer eal sÆ¿a fela scira sÆ¿a he cenne haebbe sÆ¿a feala Æ¿ucena fyrrt i. e. If the Vouchee dwell one Shire off let him at first have one week if two Shires off let him have two weeks if three Shires off let him have three weeks and for so many Shires as he dwelleth off let him have so many weeks The Law of Henry the First is somewhat more particular Qui residens est ad domum suam summoniri debet de placito quolibet cum testibus Et si dâ—mi non est idem dicatur vel dapifero vel denique familiae suae libere denuncietur 〈◊〉 in eodem Comitatu sit inde ad septem dies terminum habeat si in alia Schira â—it 15. dierum terminum habeat si in tertio Comitatu sit 3. Hebdomadae 〈◊〉 quarto quartae Hebdomadae ultra non procedit ubicunque fuerit in Anglia 〈◊〉 competens eum detineat soinius sâ—ultra mare est 6. Hebdomadas habeat unum diem ad accessum recessum maris nisi vel occupatio servitii Regis vel ipsius aegritudo vel tempestas vel competens aliquod amplius respectet The Statute of Marlebridge cap. 12. soundeth to this purpose In Assisis autem ultimae praesentationis in placito Quare impedit de Ecclesiis vacantibus dentur dies de Quindena in Quindenam vel de tribus septimanis in tres septimanas prout locus fuerit propinquus vel remotus And again Cap. 26. Sed si vocatus c. ad warrantum coram Justiciar itinerantibus fuerit infra Comitatum tunc injungatur Vicecomiti quod ipsum infra tertium diem vel quartum secundum locorum distantiam faciat venire sicut in itinere Justiciar fieri consuevit Et si extra Comitatum maneat tunc rationabilem habeat Summonitionem 15. dierum ad minus secundum discretionem Justiciar Legem Communem There was also another use of Returns as appeareth by the Reformed Custumary of Normandy Artic. the 10 th Some of them belonged to Pleas of Goods and Chattels which we call personal Actions as those of Octab. Some to Pleas of Land and real Actions as those of Quindena Pleas of Goods and Chattels were holden from Octabis to Octabis Pleas of land not sooner than from Quindena to Quindena Nul n'est tenu de respondere de son heretage en moindre tems que de quinzaine in quinzaine The more solemn Actions had the more solemn Returns as we see by the Stat. of dies communes in Banco which I leave to my Masters of the Law I will not speak of the Returns particularly more than that Octab. is sometimes reckon'd by seven days sometimes by eight by seven days excluding the Feast from which it is counted by eight including it And the word is borrowed from the Constitutions of the Church where the seven days following Easter were appointed to be Ferial-days as we have shewed before in imitation of the seven days Azymorum following the Passover in the Levitical Law But in this manner Octab. Trinitatis always includeth nine days reckoning Trinity-Sunday for one by reason the just Octabis falleth on the Sunday following which being no day in Court putteth off the Return till the next day after making Munday always taken for the Octab. unless you will count these two days for no more than one as the Statute de Anno Bissextili in the like case hath ordained the superfluous day in the Leap-year call'd Intercalaris and the day going next before to be accounted but one day It is here to be noted that although the Sundays and Grand-days be no days in Court yet they are numbred among the days of Retourne according to the Civil Law Feriae autem sive repentinae sive solennes sint dilationum temporibus non excipiantur sed his quoque connumerentur CHAP. VII Of the Quarta dies post TOuching the Quarta dies post allowed to the Defendant for his Appearance after the day of Return it is derived from the ancient Saxon Salique French and German Laws where it was ordained that the Plaintiff should per triduum seu amplius adversarium expectare usque ad occasum solis which they called Sol Satire as appeareth abundantly in their Laws and in the Formular of Marculfus and Bignonius's notes upon the same To which also may be added that which occurreth in Gratian Cap. Biduum vel triduum But the original proceedeth from the ancient custom of the Germans mentioned by Tacitus Illud ex libertate vitium quod non simul nec jussi conveniunt sed alter tertius dies cunctatione coeuntium absumitur He saith ex libertate because that to come at a peremptory time was a note of Servitude which the Germans despised It is very observable that King Edw. III. calling a Great Council in the fifteenth year of his Reign wherein were assembled divers Bishops and twenty two Earls and Abbots he appointeth them by his Writ of Summons to meet at London die Mercurii proxime post festum translationis S. Thomae Martyris proximo futura vel saltem infra tres dies ex tunc immediate sequentes ad ultimam The Writ carrieth the form phrase and stile of a Parliament-Writ but in this point of triduum post differeth from all others that I have seen Hear the Writ it self Rex Ven. in Christo R. eadem gratia Bathon Wellens Episcopo salutem Quia super quibusdam arduis urgentibus negotiis nos statum regni nostri Angliae contigerit vobiscum cum aliis Praelat ac Magnatibus dicti regni die Mercurii proximo post festum Translationis Sancti Thomae Martyris proxime futuri apud London colloquium habere tractatum Vobis in fide dilectione quibus nobis tenemini mandamus firmiter injungentes quod quibuscunque actionibus cessantibus dictis die loco vel saltem infra tres dies ex tunc immediate sequent ad ultimam personaliter intersitis nobiscum cum dictis Prelatis Magnatibus super negotiis praedictis tractaturi vestrumque Consilium impensuri Et hoc sicut nos
and the reason why our common Law was 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 an unwritten Law They were originally a Grecian Colonie coming out of Lacedaemon and the Territorie of Sparta Where Lycurgus being sometime King and Author of their Law among other of his Decrees he named 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ordain'd this for one That their Laws should not be written because he would have every man to fix them in his memory and for that purpose made them short and summary after the manner of our maximes This course the Saxons and by their example the other German Nations held for many ages The first of the Northern Nations that alter'd it were the Goths who in the Aera 504. i. e. the year of Christ 466. under Euricus their King set their Laws in writing Legum instituta scriptis habere caeperunt ..... The Burgundians and Saliques a little before but the Saxons themselves and the Angli Werini and Frisii are not noted to have written Law till the time of Herald the Dane about the year 994. So that our Saxons here in Britain began to write some of their Laws before their brethren of Germany For tho' they reduc'd not the general manners and customs of their Country whereby they liv'd and were govern'd into a written Volume but left them still as Lycurgus his Rhetras to common memory and tradition yet many of their ancient Kings after they had recieved Christianity put their own Constitutions into writing So did the most ancient of them Aethelbert King of Kent about the year 680. if his Laws whereof I have a MS. copy were in his own days put in writing So did Inas King of the West-Saxons What the Laws of the Britains were remains at this day to be seen by a model of them in an ancient Manuscript under the Title of The Laws of Hoel Dha that is Hoel the good nothing consonant to these of ours at this day or those of the Saxons in time past But we find by the Red Book in the Exchequer that the Laws of Hen. I. did so concur in many things with them of the other Nations we spake of that sometimes he not only citeth the Salique Law and the Ribuarian or Belgique Law by name but deduceth much of the Text verbatim from them And we find also a great multitude of words of Art names of Offices Officers and Ministers in our Law common in old time to the Germans French Saliques Longobards and other Nations as well as to our Saxons Danes and Normans but not one to my knowledge that riseth from the British tongue nor do we retain any Law Rite or Custom of the ancient Britains which we received not from the Saxons or Germans as used also by them of old before they came into Britain For these few Greek words that are found in our Law Chirographer and Protonotary whereby some argue the antiquity of our Law to be from the Druides whom Caesar and Pliny report to have used the Greek tongue it is doubtless that they are come to us from the Civil Lawyers and the one of them being a Mongrel half Greek and half Latin could not descend from the Druides who had neither knowledge nor use of the Latin tongue They therefore that fetch our Laws from Brutus Mulmutius the Druides or any other Brutish or British Inhabitants here of old affirming that in all the times of these several Nations viz. Britains Romans Saxons Danes and Normans and of their Kings this Realm was still ruled with the self same customes that it is now viz. in the time of King Henry VI. govern'd withal do like them that make the Arcadians to be elder than the Moon and the God Terminus to be so fixed on the Capitoline-hill as neither Mattocks nor Spades nor all the power of men nor of the other Gods could remove him from the place he stood in And thus I end APPENDIX Pat. 11. Hen. III. m. 13. REX universis Patentes literas inspecturis salutem Cum Venerabilis Pater S. Cant. Episcopus auctoritate Domini Papae fratrum suorum nobis gratiam de juramentis praestandis coram Justiciariis nostris de Praecept nostro Itiner ab instanti Adventu Domini usque ad Vigiliam Sancti Thomae Apostoli a principio Quadragesimae usque ad Dominicam qua cantatur Isti sunt dies duntaxat in rebus subscriptis viz. in Assizis ultimae praesentationis de morte Antecessor novae diss de magna Assiza de Inquisitionibus quae de terra emergerint coram eisdem Justiciariis nostris vel per judicium vel de consensu pertinent Ita quod haec concessio hoc anno tantum durabit usque ad diem Dominicam supradictam Nos per literas nostras patentes quas eidem Domino Archiepiscopo fieri fecimus protestati sumus quod concessio illa nobis ad praesens facta usque ad diem Dominicam supradictam non trahetur in consequentiam post eundem diem Cum igitur supplicaverimus Ven. Patri IV. Archiepiscopo Eboracensi de consimili gratia nobis concedenda de Juramentis praestandis per totam Provinciam suam usque ad Terminum praedictum Nos per has literas nostras Patentes protestamur quod dictus Archiepiscopus Ebor. per totam Proviciam suam id de Juramentis praestandis sicut praedictum est nobis duxerit concedendum concessio ista ad praesens facta usque ad terminum praedictum non trahetur in consequentiam post diem eundem In cujus rei testimonium eidem Domino Archiepiscopo Ebor. dedi has literas nostras Patentes sigillo nostro signatas Teste meipso apud Westmonast 11. Nov. Anno regni nostri undecimo Claus 11. H. III. m. 26. Rex dilectis fidelibus suis Stephano de Segrave Roberto de Lexinton sociis suis Justic Itinerantibus in Com. Warw. Leic. Glouc. Wigorn. Salutem Sciatis quod Venerabilis Pater S. Cant. Archiep. auctoritate Domini Papae concessi quod juramenta praestentur coram Justiciariis nostris Itinerant ab instanti adventu corum usque Vigiliam Sancti Thomae Apostoli à principio Quadragesimae usque ad diem Dominicam qua cantatur Isti sunt dies viz. in Ass ultimae praesentationis de morte Antecessor de magna Ass de Inquisitionibus quae emergerint de terris sicut plenius nobis constitit ex inspectione literarum Domini Cant. quas inde vobis mittimus Rogamus ut V. P. W. Ebor. Archiepiscopus quatenus concedens juramenta in consimilibus causis praestari infra Provinciam suam usque ad Praesat Terminum literas suas patentes consimiles literas Domini Cant. inde habere faciat Vt autem liberius facilius hoc volet facere misimus literas nostras patentes quales fieri fecimus Domino Cant. protestantes quod post terminum praefatum concessio praedicta ab eo nobis facta non poterit trahi in observantiam Vobis
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
and others This point of use and example I have in a manner answered before speaking as it fell in my way of Bishops being secular Judges One line serveth to level at them both yet for further and more perspicuous resolution of the matter see both the example and the use censured in the Decret 34. Distinct ca. 1. by Pope Nicholas ad Albinum Archiepisc alias Aluinum Quemadmodum relatione fidelium nostris auribus intimatum est quod Lanfredus Episcopus qui juvenis esse dicitur venationi sit deditus quod vitium plurimos etiam de Clericali Catalogo genere duntaxat Germanos Gallos irreverenter implicat Verum iste si ita est ut audivimus merito juvenis dicitur qui juvenilibus desideriis occupatus nulla gravitate constringitur Et infra Nam ut Beatus dicit Hieronymus Venatorem nunquam legimus sanctum Then blaming him also for being too familiar with his daughter he saith Oportet ergo fraternitatem tuam Synodale cum Episcopis Suffraganeis tuis convocare Concilium hunc salutaribus colloquiis Episcopum convenire atque illi pastorali authoritate praecipere quatenus ab omnium bestiarum vel volucrum venatione penitus alienus existat or in short to Excommunicate him Here he sheweth Hunting to be used both by a Bishop and by a multitude of Clerks plurimos But neither the Person and Dignity of the one not the multitude nor frequent use in the other maketh the Pope to abstain from condemning it Howbeit they whose example the Apologist alledgeth little respected as I think the whole Volume of Canons Touching the Record of the Earl of Arundel's Excommunication for taking up the Arch-bishop of Canterbury's Hounds coming into the Earl's grounds to Hunt and the Arch-bishop's pleading That it was lawful for him to Hunt in any Forest of England whensoever he would we must as we before said pray Oyer of the Record for parols font plea and their certainty appears not here nor what became of the issue which tho' it fell out to be found for the Arch-bishop yet perhaps it discharged him not against the Canon And well might he be as bold with the Canon as he was with the Law For it is directly against the Law both of England and France to Excommunicate a Peer of the Realm without the King's assent and therefore Henry III. was sore offended with the Arch-bishop for this Excommunication and the Bishops of London and Norwich were called in question for the like in Henry the Second s time as Matthew Paris reporteth pa. 99. But because his case sways the cause to the ground I must dwell a little the longer upon it to shew what became of it The truth is it was ended by comprise in the Chappel at Slyndon upon Friday after the Circumcision of our Lord 1258. that is 43. Henr. III. in this manner quod idem Archiepiscopus successores sui semel in quolibet anno non plus cum transierint per dictam Forestam i. e. de Arundel cum una lesia de sex leporariis sine aliis canibus sine arcu habeant unum cursum in eundo alium in redeundo ita quod si capiant unam feram illam habebunt si nihil capiant in illo cursu nihil habebunt Si vero capiant plus quam unam feram Archiepiscopi qui pro tempore fuerint habeant quam elegerint residuum habeant dictus Dominus Johannes haeredes ejus c. Then is it further awarded that the said Earl his Heirs and Assigns shall yearly for ever pay unto the said Arch-bishop and his Successors 13. Bucks and 13. Does captas de fermysun as the Record saith at times there appointed And then followeth this close which maketh all plain Et actum est expresse inâ—â—r partes de praecepto ordinatione dictorum Arbitratorum quod dictae partes procurabunt confirmationem Domini Papae Domini Regis super praesenti confirmatione By this Record it appeareth that neither the Earl could make this grant without Licence from the King for that all Forests are the Kings and no Subject can have them otherwise than in custody nor the Arch-bishop could safely use the priviledge of Hunting without dispensation from the Pope and tho â—yet find not where the one was obtain'd from the Pope yet I find where the other was granted from the King and namely from Edward the First in the 2 d. year of his Reign where all the award and composition beforesaid is by way of Inspeximus recited and confirmed But the composition for the Bucks and Does was after in Edw. the third's time released by the Arch-bishop Simon Islip having taken for the same 240. marks as witness Antiqq Britann ca. 55. And it seemeth further by this Record that the Arch-bishops of Canterbury had not at that time dispensation from the Pope to Hunt where they listed in any Forest of England for then should he not have needed special Dispensation in this case But howsoever the Dispensation or Confirmation was hereupon obtain it is apparent that it stretched no further than to Hunt with Grey-hounds for the Bow is expresly forbidden and excepted It may be some will extend the word Confirmation to be meant of some right of Hunting which the Arch-bishop upon this arbitrement was to disinherit his Church of which I leave to the judgement of Lawyers For it may contain both tho' I never saw any precedent of the Popes in that kind for so small a matter but of the other kind we have before made mention of one to Roger Bishop of Salisbury and a multitude of others are to be produc d. Again if they have a Dispensation for Hunting yet it hath some limitation either for the place or the manner which his Lordship if he justify under that must shew particularly To come now at last to to the last point of the Apologie drawn from the particular example of Arch-bishop Cranmer who in the description of his Life Britannicarum Antiqq ca. 68. is set forth to Hunt Shoot and Ride a great or stirring Horse with notable activity even when he was Arch-bishop and in the words recited by the Apologist But these be Exercises of War not of Religion fit for Barons not for Bishops who in ancient time following the example of our Saviour and his Apostles walked on foot as appeareth by Bede Eccl. Hist l. 3. ca. 14. lib. 4. ca. 3. and beginning to Ride used here in England Mares as Bede also witnesseth lib. 2. ca. 13. in other places Mules not Horses for Bellum haec armenta minantur as not only the Poet saith but as the Scripture also Prov. 21. ult Equus paratur ad diem belli And such belike did this Arch-bishop Cranmer mount upon and mannage as the words imply ut in famulatu suo non fuerit quisquam qui in generosum equum salire ac tractare elegantius potuisset Besides
alii creditum alius subtrahat ac praecipue Clericis quibus opprobrium est si peritos se velint disceptationum esse forensium ostendere But here we see that the Clergy even in those days had set their foot upon the business and I suppose that since that time they never pulled it wholly out again It is like the Eastern Nations adhering to the Empire did observe it But the Western being torn from it by the Northern Nations Saxons Goths and Normans took and left as they thought good Reâ—â—ardus King of the Western Goths about the year 594. tho' he retained the manner of the Civil Law in making Wills yet he ordained that they should be publish d by a Priest as formerly they had been His succâ—ssor Chindavinâ—us about An. 650. making a Law about a Military Will ordained that it should be examined by the Bishop and Earl and ratified by the hand of a Priest and the Earl As the Northern Nations I speak of the Goths the Saxons and Normans were of Neighbour and affinity in their Habitation Language and Original so were they also in their Laws and Manners Therefore as the Goths trusted to their Priests with the passing of Wills so did the Normans their Custom and Law was that Tout testament doit estre passe par devant le Curè ou Vicaire notaire ou tabellion en la presence de daux temotnâ—s idoines dâ— XX. ans accomplis non legataires That all Testaments shall pass before the Curate or Vicar c. where the Commentary noteth that it must be the Curate or Vicar of the same Parish where the Testator dwelleth And that Notary hath been adjudged to be a Notary Apostolick or Ecclesiastical So that the business was then with them wholly in the hands of the Clergy This ancient Norman use liveth to this day in many Towns of England The Parson of Castle Rising in Norfolk hath the Probat of Testaments in that Town And so hath the Parson of Rydon and the Parson of North-Wotton in North-Wotton To go back to our Saxon Ancestors I see they held a kind of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or similitude of Laws with their brethren the Goths and Normans And tho' I find no positive constitution among them in this point yet ab actis judicatis the supporters of the Common Law it self we may perceive what their Custom and Law was Elfâ—re who lived before the year 960. having made his Will did afterward publish the same before Odo the Arch-bishop of Canterbury Elfsy the Priest of Croydon and many other Birtrick and his wife in no long time after declared their Will at Mepham before Elfstane Bishop of Rochester Wine the Priest and divers other See a MS. Law of King Alured the Great who flourished An. 880. De eo quâ— terram testamâ—ntalem habet quam ei parâ—ntes sui dimiserunt ponimus ne illam extra cognationem suam â—â—ttere possit si scriptum intersit testamenti testes quod â—orum prohibitto fuerit qui haâ—c imprimis acquisiverint ipsorum qui dederint ei nâ— hoc possit hoc in Regis Episcopi testimonio recitetur coram parentela sua It is said in the Civil Law that the declaration of a Testament before the Prince omnium Testamentorum solennitatem superat Here the Bishop is joined with the King in cognisance of the Testament by the copulative but Mr. Lambard tho' I confess it agreeth not with the Saxon maketh it in the disjunctive coram Rege aut Episcopo as if it might be before either of them The Saxon is on Cyninges bisceopes geÆ¿itnysse in Râ—gis Episcopi testimonio Be it one or the other it cometh much to a reckning for the presence of the King was then represented in the County by the person of the Earl of the County as it is this day in his Bench by the person of his Judges And the Earl and Bishop sitting together in the Court of the County did as if the King and the Bishop had been there hear jointly not only the causes of Wills spoken of in this Law wherein the Bishop had special interest but other also that came before them And therefore in those days the extent of the Earl's County and the Bishop's Diocess had but one limit To this purpose is the Law of King Edgar Cap. 5. and the like of Canutus Cap. 17. Comitatus bis in anno congregatur nisi plus necesse sit in illo Comitatu sint Episcopus Comes qui ostendant populo justitiam Dei rectitudines seculi The Saxon is ðaere beon ðaere scyre biscop se Ealdorman Let the shire Bishop be there and the Alderman so then they called the Earl Thus both Ecclesiastical and Secular Causes were both decided in the County Court where by the Canons of the Church the Ecclesiastical Causes were first determined and then the Secular And many Laws and Constitutions there be to keep good correspondency between the Bishop and the Earl or Alderman And as both kind of justice were administred in the County Court so were they also in the Hundred Court in which course they continued in both Courts 'till the very time of the Conquest as it seemeth and almost all his time after But about the eighteenth year of his Regn by a Common Council of the Arch-bishops Bishops Abbots and Princes of the Kingdom which we now call a Parliament he ordained as appeareth in a Charter of his then granted to Remigius Bishop of Lincoln Vt nullus Episcopus vel Archidiaconus de legibus Episcopalibus amplius in Hundred placita teneat nec causam quae ad regimen animarum pertinet ad judicium secularium omnium adducant sed quicunque secundum Episcopales leges de quacunque causa vel culpa interpellatus fuerit ad locum quem ad hoc Episcopus ei elegerit nominaverit veniat ibique de causa vel culpa sua respondeat non secundum Hundred sed secundum Canones Episcopales leges rectum Deo Episcopo suo faciat c. What ensued upon this and how the Bishop and Earl divided their Causes and Jurisdiction appeareth not That of Wills belonged either wholly to the Earl as Rector Provinciae by the Constitution of Theodosius or as much to the Earl as to the Bishop by the Laws of King Edgar and Canutus But the subsequent use must inform us what was then done upon it And thereby it seemeth that all went wholly to the Bishop and Clergy and that the Saxon custom was changed and the Norman introduced And that the name of Court Christian or Ecclesiastical sprung not up or was heard of till after this division For now the devising of Lands by Will after the Saxon manner was left and the goods themselves could not be bequeathed but according to the use of Normandy A third part must remain
that make me think that our wealth should continue with us better now than in times past it hath done are for that the Roman-coffers are not now glutted as they have been with English-treasure continually flowing into them For it is a world to consider the huge stocks of mony that those cozening Prelates have heretofore extorted out of her Majesties Kingdoms by their Antichristian and usurpt Supremacie As by Pope Innocent constraining King John to redeem his Crown at his hands and to take it for ever in farm for the yearly rent of 1000. marks to be paid to him and his Successors By causing Henry III. to maintain his wars against Frederick the Emperor and Conrade King of Sicil By drawing from our Kings many contributions and benevolences By laying upon their Subjects as well temporal as spiritual tenths and taxes in most ravenous manner and that very often So that in the time of Henry III. the Realm was by such an extream tax mightily impoverished as our Chronicles witness as also at many other times since and before For when the Pope was disposed to use mony he would tax our people as if they had been his natural Subjects by many Congratulations of the Clergy as 11000. marks at one pull to Pope Innocent IV. by private Remembrances from single Bishops as 9500. marks from the Arch-bishop of York to Pope Clement V. in An. 34. or 35. Edw. I. and from divers of them jointly 6000. marks to the foresaid Innocent By their rich Revenue of the First-fruits and Tenths as well of the Archbishopricks as of all other Spiritual Livings now reannext unto the Crown by the Parliament in the first of her Majesty By Installing Consecrating and Confirming Bishops By dealing Benefices By appellations to the Church of Rome By giving definitive Sentences By distributing heavenly Grace By granting Pardons and Faculties By dispensations of Marriages Oaths and such like By selling their blessed trumpery and many such other things that I cannot reckon whereof that merchandizing Prelate knoweth full well how to make a Commoditie according to the saying of Mantuan Venalia nobis Templa Sacerdotes Altaria sacra Coronae Ignis thura preces coelum est Venale Deusque All this consider'd and that the summs of mony by them receiv'd before the time of Henry VIII were according to the value of our Coin at this day three times as much as before is shewed you must needs confess that the fat of the Land larded the Roman dishes whilst our selves teer'd upon the lean-bones Besides it must not be forgotten that one tenth granted to the Pope impoverisht the Realm more than ten unto the King For what the King had was at length return'd again among the Subjects little thereof going out of the Land much like the life-blood which tho' it shifteth in divers parts yet still continueth it self within the body But whatsoever came into St. Peter's pouch was lockt up with the infernal key Et ab infernis nulla est redemptio England might lick her lips after that it came no more among her people Thus we were made the Bees of Holy-Church suffer'd to work and store our hives as well as we could but when they waxed any thing weighty his Legates were sent to drive them and fetch away the honey Yea if his Holyness were sharp sett indeed he would not stick to use a trick of Husbandry rather burn the Bees than want the honey I may tell you too his Legates and Nuncio's were ever trim fellows at licking of the hive as in our Chronicles you may read abundantly Viand You have made the matter so plain that I must needs grant that our treasure goeth not out of the Land in any comparable measure as it did in times past For as you say tho' these actions of the Low-Countries France Portugal and other places hath somewhat suck'd us yet I consider that we have ever had such a vent even in the several days of our Kings as in the time of Queen Mary King Edw. VI. King Henry VIII c. Selv. Their occasions indeed are best known unto us because many men living were witnesses thereof But I will recite unto you cursorily somewhat of the rest that you may the better be satisfy'd that it is no novelty in England And for to begin with Henry II. what store of treasure think you was by him and his wasteful sons whereof two namely Henry and John were Kings as well as himself daily carry'd into France Flanders Saxony Sicil Castile the Holy-land and other places sometime about their wars and turbulent affairs other some time for Royal expence about meeting feasting and entertaining the French King the Pope foreign Princes and such other occasions the particular whereof were too long to recite But we may well think that England must needs sweat for it in those days to feed the riotous hands of three several Kings spending so much of their time on the other side the Seas as they did The like was done by Richard I. about his ransome and business with the Emperor and Leopold Duke of Austria about his wars in France and the Holy-land where it is said that by estimation he spent more in one month than any of his predecessors ever did in a whole year By Henry III. about the affected Kingdom of Sicil and his wars in Gascoigne and other parts of France and in bounty to strangers He at one time sent into France at the direction of the Poictovins 30. barrels of Starling Coin for payment of foreign Souldiers and at another time these his wasteful expences being cast up the summ amounted to 950000. marks which after the rate of our allay encreaseth to By Edw. I. about his Actions of Guien Gascoigne France Flanders and the Conquest of Scotland and the striking of a League with Adolph the Emperor Guy Earl of Flanders John Duke of Brabant Henry Earl of Bar Albert Duke of Austria and others against the French King and Earl Jo. of Henault his partaker By Edw. III. about his Victories and designs in France and elsewhere which exhausted so much treasure as little or none almost remain'd in the Land as before is shewed By Henry IV. about the stirs of Britain and in supportation of the confederate faction of Orleance By Henry V. about his Royal Conquest of France By Edw. IV. in aiding the Duke of Burgundy and in revenging himself upon the King of France By Henry VII about his wars in France in annoying the Flemings in assisting the Duke of Savoy and Maximilian King of the Romans I need not speak of Henry VIII whose foreign Expences as they were exceeding great so they are sufficiently known to most men Neither have I more than lightly run over the rest who besides these that I have spoken of had many other foreign charges of great burden and much importance and yet not so much as once touch'd by me as Marriage of their Children with foreign Princes Treaties