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
p. 121. VIII Of the Original of Testaments and Wills and of their Probate to whom it it anciently belong'd p. 127. IX Icenia sive Norfolciae Descriptio Topographica p. 133. X. Catalogus Comitum Marescallorum Angliae p. 165. XI Dissertatio de Milite p. 172. De aetate Militari p. 174. De evocatis ad Militiam suscipiendam p. 175. De modo â—reandi Militem honoratum primo de Cingulo militari p. 176. Qui olim fiebant Milites p. 179. Qui possint militem facere p. 180. Judices etiam sub appellatione Militum censeri scil Equ esse Palatinos p. 182. De loco tempore Creationis p. 183. De Censu militari p. 184. Modus Exauctorandi Militem quod Degradare nuncupatur XII Historia Familiae de Sharnburn p. 187. XIII Familiae Extraneorum sive Lestrange accurata descriptio p. 200. XIV A Dialogue concerning the Coin of the Kingdom particularly what great treasures were exhausted from England by the usurpt Supremacy of Rome p. 203. XV. A Catalogue of the Places or Dwellings of the Arch-bishops and Bishops of this Realm now or of former times in which their several Owners have Ordinary Jurisdiction as if parcel of their Diocess tho' they be situate within the precinct of another Bishop's Diocess p. 211. THE Original Growth Propagation and Condition OF FEUDS and TENURES BY KNIGHT-SERVICE In ENGLAND CHAP. I. The occasion of this Discourse and what a Feud is IN the great case of Tenures upon the Commission of Defective Titles argued by all the Judges of Ireland and published after their resolution by the commandment of the Lord Deputy this year 1639. it fell out upon the fourth point of the Case to be affirmed That Tenures had their original in England before the Norman Conquest And in pursuit of this Assertion it was concluded That Feuds were then and there in use In proof hereof divers Laws and Charters of the Saxon Kings and some other Authorities be there alledged which being conceived to have clear'd that point it thus followeth in the Report p. 35. And therefore it was said that Sir Henry Spelman was mistaken who in his Glossary verbo Feodum refers the original of Feuds in England to the Norman Conquest And for a Corollary p. 38. addeth these words Neither is the bare conjecture of Sir Henry Spelman sufficient to take away the force of these Laws Vide Spelman in Glossar verbo Feodum Being thus by way of voucher made a chief Antagonist to the Reverend opinion of these learned grave and honour'd Judges I humbly desire of them that writing what I did so long ago and in a transitory passage among a thousand other obscure words not thinking then to be provok'd to this account they will be pleas'd to pardon my mistakings where they fall and to hear without offence what motives led me to my conjectures which they speak of It is necessary therefore that first of all we make the question certain which in my understanding is not done in the Report For it is not declared whether there were divers kinds of Feuds or no nor what kind they were that were in use among the Saxons nor what kind those were that I conjectured to be brought in by the Norman Conqueror I will therefore follow the direction of the Orator and fix the question upon the definition A Feud is said to be Vsus fructâ—s quidam rei immobilis sub conditione fidei But this Definition is of too large extent for such kind of Feuds as our Question must consist upon for it includeth two members or species greatly differing one from the other the one Temporary and revocable as those at Will or for Years Liâ—e or Lives the other Hereditary and perpetual As for Temporary â—euâ—s which like wild fig-trees could yield none of the feodal fruits of Wardship Marriage Relief c. unto their Lords they belong nothing unto our argument nor shall I make other use in setting of them forth than to assure the Reader they are not those that our Laws take notice of To come therefore to our proper Scheme let us see what that Hereditary Feud is whereupon our Question must be fixed for none but this can bear the feodal fruits we speak of Wardship Marriage c. A Feud is a right which the Vassal hath in Land or some immoveable thing of his Lord's to use the same and take the profits thereof hereditarily rendring unto his Lord such feodal duties and services as belong to military tenure the meer propriety of the soil always remaining unto the Lord. I call it as the Feudists do Jus utendi praedio alieno a right to use another mans Land not a property in it for in true feodal speech the Tenant or Vassal hath nothing in the propriety of the soil it self but it remaineth intirely unto the Lord and is comprehended under the usual name which we now give it of the Seignory So that the Seignory and the Feud being joyned together seem to make that absolute and compleat estate of Inheritance which the Feudists in time of old called Allodium But this kind of Feud we speak of and no other is that only whereof our Law taketh notice though time hath somewhat varied it from the first institution by drawing the propriety of the soil from the Lord unto the Tenant And I both conceive and affirm under correction That this our kind of Feuds being perpetual and hereditary and subject to Wardship Marriage and Relief with other feodal services were not in use among our Saxons nor our Law of Tenures whereon they depend once known unto them As shall appear by that which hereafter followeth CHAP. II. The Original Growth and Propagation of Feuds first in general then in England BEfore I enter into the Question in hand it will be necessary for better understanding that which followeth to set forth the original growth propagation and condition of Feuds in general which I conceive to be thus There were no doubt from the beginning of Jus Gentium Lords and Servants and those servants of two sorts Some to attend and guard the person of their Lord upon all occasions in War and Peace Some to manure his Lands for the sustenance of him and his Family When private Families were drawn into a Kingdom the Kings themselves held this distribution Examples hereof are in all Nations King David well observ'd it in the Institution of the Kingdom of Israel where if such services have any shew of Feuds or Tenures we have a pattern for them all viz. For that of Francalmoine in the Levites for Knight-service Tenure in Capite and Grand Serjeanty in the Military men which serv'd the King personally by monthly courses for Socage in those whom David appointed to manure the Fields dress the Vineyards the Olive-trees the Mulberry-trees and that had the care of the Oyl of the Oxen of the Camels Asses Sheep c. For the
seqq a name not well agreeing with Feodal servitudes But it seemeth by divers Abby-books that some Estates for life which we call Frank tenements were also put in writing especially among the latter Saxons Yet were not these accounted bocland for they were laden commonly with many feodal and ministerial services whereas bocland as I said was free from all services not holden of any Lord the very same that Allodium descendable according to the common course of Nations and of Nature unto all the sons and therefore called Gavelkind not restrain'd to the eldest son as feodal lands were not at first but devisable also by will and thereupon called Terrae testamentales as the Thane that possessed them was said to be testamento dignus Folcland was terra vulgi the land of the vulgar people who had no estate therein but held the same under such rents and services as were accustomed or agreed of at the will only of their Lord the Thane and it was therefore not put in writing but accounted proedium rusticum ignobile But both the greater and the lesser Thanes which possessed Bocland or hereditary lands divided them according to the proportion of their estates into two sorts i. e. into Inland and Outland The Inland was that which lay next or most convenient for the Lord's Mansion-house as within the view thereof and therefore they kept that part in their own hands for supportation of their family and Hospitality The Normans afterwards called these lands terras dominicales the Demains or Lord's lands The Germans terras indominicatas lands in the Lord 's own use The Feudists terras curtiles or intra curtem lands appropriate to the Court or House of the Lord. Outland was that which lay beyond or out from among the Inlands or Demeans and was not granted out to any Tenant hereditarily but like our Copy-holds of ancient time having their original from thence meerly at the pleasure of the Lord. Cujacius speaking of this kind of land calleth it proprium feudum that is to say such land as was properly assigned for Feodal lands Proprium feudum est saith he extra curtem consistit in praediis As if he should say That land properly is a Feud or Feudal land which lyeth without the Demains of the Mannour and consisteth in land not in houses We now call this Outland the Tenants land or the Tenancy and so it is translated out of Biritrick's will in the Saxon tongue This Outland they subdivided into two parts whereof one part they disposed among such as attended on their persons either in war or peace called Theodens or lesser Thanes after the manner of Knights Fees but much differing from them of our time as by that which followeth shall appear The other part they allotted to their Husbandmen whom they termed Ceorls that is Carles or Churles And of them we shall speak farther by and by when we consider all the degrees aforesaid beginning with the Earl CHAP. VI. Of Earls among our Saxons AN Earl in the signification of Comes was not originally a degree of dignity as it is with us at this day but of Office and Judicature in some City or portion of the Country circumscribed anciently with the bounds of the Bishoprick of that Diocess for that the Bishop and the Earl then sat together in one Court and heard jointly the causes of Church and Common-wealth as they yet do in Parliament But in process of time the Earl grew to have the government commonly of the chief City and Castle of his Territory and withal a third part of the King's profits arising by the Courts of Justice Fines Forfeitures Escheats c. annexed to the office of his Earldom Yet all this not otherwise than at the pleasure of the King which commonly was upon good behaviour and but during life at most This is apparent by the severe injunction of King Alfred the Great labouring to plant literature and knowledge amongst the ignorant Earls and Sheriffs of his Kingdom imposed upon them That they should forthwith in all diligence apply themselves to the study of wisdom and knowledge or else forgoe their Office Herewith saith Asser Menevensis who lived at that time and was great with the King the Earls and Sheriffs were so affrighted that they rather choose insuetam disciplinam quam laboriose discere quam potestatum ministeria dimittere that is To go at last to the School of knowledge how painful soever rather than to lose their offices of Authority and degrees of Honour which Alfred there also declareth that they had not by Inheritance but by God's gift and his Dei saith he dono meo sapientium ministeria gradus usurpatis This is manifest by divers other authorities and examples in my Glossary in verbo Comes as the Reader if he please may there see Some conjecture that Deira and Bernicia in Northumberland and Mercia in the midst of England were Feudal and hereditary Earldoms in the Saxon times Those of Northumberland presently after their first arrival under Hengistus about the year 447. that of Mercia by the gift of Alfred the Great about the year 900. to Ethelredus a man of power in way of marriage with his daughter Ethelfleda but for ought I see it is neither proved by the succession of those Earldoms nor our Authors of Antiquity For my own part I think it not strange that there was not at the entry of the Saxons a Feudal and Hereditary Earldom in all Christendom As for this our Britain the misery of it then was such as it rather seemed an Anarchy and Chaos than in any form of Government Little better even in Alfred's days through the fury of the Danes tho' he at last subdued them for his time How soever three or four examples in five hundred years before the Conquest differing from the common use is no inference to overthrow it especially in times unsettled and tumultuous The noble Earldom of Arundel in our days of peace differeth in constitution from all the other Earldoms of England yet that impeacheth not their common manner of succession Loyseau and Pasquier learned Frenchmen speaking of the Dukes and Earls of France which England ordinarily followeth and sometimes too near the heels justifie at large what I have said shewing the Dukes and Earls in the Roman Empire from whose example others every where were derived were like the Proconsuls and Presidents of Provinces simple Officers who for their entertainment had nothing else but certain rights and customs raised from the people which we in England called Tertium denarium And that the Dukes and Earls of France were Officers in like manner but had the Seigneurie of their territory annexed to their Office so that they were Officers and Vassals both at once that is to say Officers by way of Judicature and Vassals whom we call Feodal tenants for their Seignories of Dukedoms and
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
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
heirs upon every gift grant and alienation tho' no word were spoken of them It appeareth by the Feodal-law from whence all that part of our Common-law that concerneth Tee and Tenures hath original and which our Common-law also affirmeth that there was always due ..... Those that thus receiv'd their Territories from the King were said to hold them in Capite for that the King is Caput Regni and were thereupon call'd Capitanei Regis and Capitanei Regni otherwise Barones Regis the King's men Tenants or Vassals who having all the land divided amongst them saving that which the King reserv'd to himself as Sacrum Patrimonium were also call'd Pares Regni and were always upon commandment about the person of the King to defend him and his Territories in war and to counsel and advise him in peace either Judicially in matters of Law brought before the King in his Palace which in those days was the only place of Royal justice or Politically in the great affairs of the Kingdom Hereupon they were not only call'd Praetorianum consilium as belonging to the King's Palace but Magnum concilium Regis and Magnum concilium Regni For that in those times it belonged only to them to consult with the King on State-matters and matters of the Kingdom insomuch as no other in the Kingdom possessed any thing but under them And therefore as in Despotical Government the agreement or disagreement of the Master of the Family concluded the menial and the whole Family so the agreement and disagreement of the chief Lord or him that held in Capite concluded all that depended on him or claimed under him in any matter touching his Fee or Tenure To this purpose seemeth that in the Laws of Edward the Confessor ratified by the Conqueror Debet etiam Rex omnia ritè facere in regno per judicium procâ—rum regni These great Lords according to this Archetype of Government set them by the King divided their lands in like manner among their Tenants and followers First they assign'd a portion ad victum vestitum suum which they committed over to their Socmen and Husbandmen to furnish them with Corn Victuals and Provision for Hospitality and briefly all things necessary to their domestical and civil part of life The residue they divided into as many shares or portions as might well maintain so many Military men whom then they call'd their Knights and thereupon the shares themselves Knights-fees i. e. stipendia militaria And these Fees they granted over to each of their principal followers furnishing them with so many Knights for the wars These Grantees that receiv'd their Estates from the Barons or Capitanei and not from the King were called Valvasores a degree above Knights and were unto their Lords the Capitanei or Barones Regis as they the Capitanei were unto the King and did in like manner subdivide their lands among their Socmen and Military followers who in old time were call'd Valvasini whom I take to be the same at this day that are the Lords of every Mannour if not those themselves that we call Knights as owners of a Knights-Fee For in this the Feodal-law it self is doubtful and various as of a thing lost by Antiquity or made uncertain by the differing manners of several Nations Insomuch that Valvasores and Valvasini grew to be confounded and both of them at last to be out of use and no other Military Tenures to be known amongst us than tenere pâ—r Baroniam and tenere per feodum militare But in a Charter of Henr. I. it is said Si exurgat Placitum de divisione Terrarum si interest Barones meos Dominicos tractetur in Curia mea si inter Vavassores duorum Dominorum tractetur in Comitatu c. Where the Valvasores were also and the Barons themselves Suitors and Attendants Bracton mentioneth them in Henry III's time to be Viri magnae dignitatis Nor was their memory clean gone in Richard II's days as appeareth by Chaucer Yet do I not find in any of our ancient Laws or Monuments that they stood in any classick kind of Tenure other than that we may account the Baron Vavasor and Knight to be as our Lawyers at this day term them the Chief Lord Mesne and Tenant But herein the Feodal-law of our Country differ'd from that of Milan and other parts For there the Valvasini could invest which we call infeosse none under them in fee that is to hold of them by Knights-service And with us every Tenant Par aval might in infinitum till the Statute of Quia Emptores Terrarum enfeoffe another by Knight-service and to do all the services unto him that he did to his Mesne Lord. So that by this means a line of Knights-services might be created of a dozen yea twenty Mean-Lords and Tenants wherein every of them might have his prochine Tenant obliged unto him in the duties and services that his Lord Paramont which held of the King was to do and yeild unto the King himself for the same lands viz. Honour Ward Sustenance   Safety Marriage  give keep  Attendance Relief Counsel to Aid Defence of his Person Tribute Fidelity  Defence of his Patrimony     All which in ancient time while the Feodal-law flourished were well understood to be comprehended under the profession of Homage and the oath of Fidelity which every Feodal Tenant or as others call him Vassal usually did unto his Lord. Honour promis'd by the Tenant upon his knees in doing Homage which tho' it be the greatest and most submiss service that a Freeman can do unto his Lord yet the profession of it to the meanest subject is as ample and submiss yea in the very same words that to the King himself Attendance to follow and attend him in the war at his own charge and in peace with suite of Court Therefore Tacitus calleth them Comites Defence of his person for if he forsook his Lord being in danger it was forfeiture of life land and all he had Defence of his Signiory that nothing of his lands rents or services were withholden or withdrawn Profit by Ward Marriage and Relief as they fell Tribute by way of Aid to make his eldest son a Knight to marry his eldest daughter ransom himself being taken prisoner yea in some places to be an hostage for his Lord. Sustenance that being faln into poverty according to that in the Canon law spoken of a Patron Alatur egenus Counsel and Advice in which respect the Tenant was bound ordinarily once in every three weeks to come to his Lord's Court and there as a Judge with other of his Peers to censure the causes of his Signiory and to direct his Lord as the cause occurrent did require and always to keep his counsel This to the meanest Lord was in the nature of the King 's Great Court or Counsel call'd afterward a Parlyment Fidelity for
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
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
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
Durandus in the first Chapter of his seventh Book reckoneth the Purification Ascension and St. John Baptist to be Grand days not mentioning All-Saints but both he in his 34 th Chapter and Belethus in his do call it Festum Maximum Generale being not only the Feast of Apostles and Martyrs but of the Trinity Angels and Confessours as Durandus termeth it And that honour therefore and duty quod in singulis valet potentius valebit in conjunctis As for the Feast of All-Souls neither Durandus nor Belethus nor any ancient of those times for they lived almost 400. years since do record it for a Festival But our Country-man Walsingham the Monk of St. Albans saith that Simon Arch-bishop of Canterbury in the year 1328. at a Provincial Council holden at London did ordain Quod die Parasceue in commemoratione Omnium Animarum ab omni servili opere cessaretur Surely he mistook it for neither is it so mention'd in Lindewood reciting that Canon nor in the ancient Copy of the Council it self where the two Feasts canonized by him are the Paresceue and the Conception of the Blessed Virgin Yet doubtless whensoever it was instituted it was a great Feast with us tho' no where else For the old Breviarium Eboracensis Ecclesiae doth not only set it down in the Kalendar for a double Feast but appointeth after the whole service with the nine Lessons for it as a Feast of the Trinity And though neither the Statute of Edward VI. nor our Church at this day do receive it yet being formerly a Vacation day as it seemeth our Judges still forbear to sit upon it as not hitherto made a day in Courts tho' deprived of Festival rites and therefore neither graced with Robes nor Feasting The Feast also of St. Peter and Paul on the 29 th of June was a double feast yet it is now become single and our Judges sit upon it I confess I have not found the reason unless that by Decanonizing St. Paul and so leaving St. Peter single we allow him no prerogative above the other Apostles lest it should give colour for his Primacy for to St. Paul as one born out of time we allow no Festival either in the Statute of Edward VI. or in the Almanacks and Kalendars of our Church And why St. Peter hath it not is the more observable for that he not only is deprived of the ancient rights of his Apostleship contrary to the Canons as the other are but also of the priviledge given him in that place by Pope Nicholas the 2 d. in a Bull to Edward the Confessour and being Patron of the Paroche and Dedication of Westminster where the Terms are kept and where by the right of his day he was also priviledged from Court business Other Festivals I enquire not after as of St. Dunstan and the rest that stand rubricate in old Kalendars they being either abrogated by old Canons of our own Church or the Statute of Edward VI. whereof I must note by the way that I find it repealed by Queen Mary but not revived by Queen Elizabeth or since I am carried from the brevity I intended yet all this lyeth in my way nor is it out of it to speak a word of St. George's-day which sometimes falleth in Easter-Term and is kept in the Court Royal with great solemnity but not in the Courts Judicial Tho' he stood before in the Kalendar and was the English Patron of elder time yet H. Chichley Arch-bishop of Canterbury gave him his greatness by Canonizing his day to be as a double Feast and Grand day as well among the Clergy as Laity and that both the one and other repairing to their Churches should celebrate it as Christmass-day free from servile-work in ardent prayers for safety of the King and Kingdom The occasion of this Constitution was to excite King Henry the V. being upon his Expedition for Normandy and tho' this among other holy-days was abolished by the Statute 5. and 6. of Edw. VI. yet it being the Festival of the Knights of the Garter it was provided in the Statute That the Knights might celebrate it on the 22 d. 23 d. and 24 th of April Other Feasts there were of this nature as that of St. Wenefred on the second of November which is in effect no day of sitting but applied to the pricking of Sheriffs These are vanished and in their room we have one new memorably day of intermitting Court and Law business for a little in the morning whilst the Judges in their Robes go solemnly to the great Church at Westminster on the fifth of November yearly to give God thanks for our great delivery from the Powder-Treason and hear a Sermon touching it which done they return to their Benches The Institution hereof is by Act of Parliament Jacobi and it is of the kind of those Ferial days which being ordained by the Emperours not by the Popes are in Canon and Civil Law called Dies Feriati repentini I will go no farther among the tedious subtilties of distinguishing of days I have not been matriculated in the Court of Rome And I confess I neither do nor can explain many objections and contrarieties that may be gathered in these passages Some Oedipus or Ariadne must help me out CHAP. III. Why some Law business may be done on days exempted IN the mean time let us see why some Law business may be done on days exempted and sometimes on Sunday it self notwithstanding any thing before mentioned For as in Term-time some days are exempted from Term business and some portion of the day from sitting in Courts so in the Vacation-time and days exempted some Law business may be performed by express permission of the Canon Law according to that of the Poet in the Georgicks Quippe etiam Festis quaedam exercere diebus Fas jura sinunt The Synod of Medard admitteth matters de pace concordia to be dispatched both on holy days and on Sunday it self the Laws of Hen. I. matters of Concord and doing Fealty to the Lord the decree of Gregory IX cases of necessity and doing piety according to that of Prosper Non recto servat legalia Sabbata cultu Qui pietatis opus credit in his vetitum The rule is verified by our Saviour's healing on the Sabbath Out of these and such other authorities of the Laws Ecclesiastical and Civil cited in the Glosses the Canonists have collected these Cases wherein Judges may proceed legally upon the days prohibited or do the things herein following For matters of Peace and Concord by reason whereof our Judges take the acknowledgement of Fines Statutes Recognizances c. upon any day even the Sabbath-day tho' it were better then forborn if necessity require it not For suppressing of Traitours Thieves and notoriours Offenders which may otherwise trouble the peace of the Common-wealth and endanger the Kingdom For manumission of Bond-men a work of Piety For saving that which
otherwise would perish a work of Necessity For doing that which time overslipt cannot be done As for making Appeals within the time limited c. For taking the benefit of a Witness that otherwise would be lost as by Death or Departure For making the son sui Juris as if amongst us the Lord should discharge his Ward of Wardship All which are expressed in these Verses Haec faciunt causas Festis tractare diebus Pax Scelus admissum Manumissio Res peritura Terminus expirans mora testis abesse volentis Cumque potestatis Patriae jus filius exit Or thus according to Panormitanus Ratione Appellationis Pacis Necessitatis Celeritatis Pietatis Matrimonii Latrocinii ubicunque in mora promptum est periculum So likewise by consent of parties upon Dies Feriati minus solennes viz. Harvest Hay-seed c. as we have said before And divers others there are whereof see the Glosses in Gratian and in the Chapter Conquestus but especially the Title De Feriis Dilationibus in ff from whence most of the premises are deduc'd and where also by a Constitution of Trajan Military business may be done in diebus feriis and at all times Rescripsit saith the Law ferias tantum à forensibus negotiis dare vacationem ea tamen quae ad disciplinam militarem pertinerent esse feriatis diebus peragenda Upon these reasons the Admiral-Court is always open for that strangers and Merchants and sea faring-men must take the opportunity of Tides and of Winds and other necessities and cannot without ruine or great prejudice attend the solemnity of Courts and dilatory Pleadings The Marshal's Court also for Military matters falleth within the priviledge granted by Trajan yet hath it observ'd as near as conveniently it may the Canons of the Church as forbearing to assign battle in Quadragesima temporibus prohibitis And so lately in the case between the Lo. Raye and Mr. Ramesey So likewise the Chancery being a Court of piety is said to be always open but I take this to be understood as it is Officina brevium and Consistorium aequi boni not where it is Praetorium Juris communis and proceedeth in course of the Common Law As for the Star-chamber it is in lieu of that which was in ancient time the Counsel-chamber and Specula Regni the watch-tower of the Kingdom where the Barons and other of the King's Counsel us'd to meet ad prospiciendam fovendamque Remp. to discover prevent and suppress all dangers and enormities occurrent and to provide for the safety and good of the Kingdom It was necessary therefore that this Session should not only be daily open but as is said of the house of Fame Nocte dieque patens for an evil may happen in the night that would be too late to prevent in the morning And therefore the Statute of 3. Henr. VII and 21. Henr. VIII enlarging the jurisdiction hereof do not circumscribe it either with Term-time or days of sitting CHAP. IV. Why the end of Michaelmass-Term is sometimes holden in Advent and of Hilary in Septuagesima c. BUt the Terms sometimes extend themselves into the days of the Church which we call Vacation as when Advent Sunday chanceth on the 27 th of November then Michaelmass-Term borroweth the day after out of Advent and when Septuagesima followeth suddenly upon the Purification Hilary-Term not only usurpeth upon it and Sexagesima which by the precedent of the Church of Rome here before mention'd it may do but also upon Quinquagesima Ash-wednesday and Quadragesima it self for all which there is matter enough in one place or other already shewn Yet it is farther countenanced by the Statute of 3. Edw. I. cap. 48. where it is thus provided Forasmuch as it is great charity to do right unto all men at all times when need shall be by assent of all the Prelates it was provided that Assizes of Novel Disseisin Mordauncester and Darrain Presentment should be taken in Advent Septuagesima and Lent even as well as Inquests may be taken and that at the special request of the King made unto the Bishops Where it is to be noted that Inquisitions might be taken before this Statute within the days prohibited or Church time and that this Licence extended but to the particularities therein mentioned CHAP. V. Why Assizes be holden in Lent IT seemeth that by virtue of this Statute or some other particular dispensation from the Bishops Assizes began first to be holden in Lent contrary to the Canons I find in an ancient Manuscript of the Monastery of St. Albans a dispensation of this kind thus entituled Licentia concess Justic Reg. de Assis tenend sacro tempore non obstante Pateat universis per praesentes nos Ricardum miseratione divina Abbatem Monasterii Sancti Albani licentiam potestatem authoritate praesentium dedisse dilecto nobis in Christo Domino Johanni Shardlow sociis suis Justic Dom. Regis Assisas apud Barnet nostrae jurisdictionis exemptae die Lunae proximo ante Festum S. Ambrosii capiendi juxta formam vim effectum brevis Domini Regis inde iis directi In cujus c. Anno Domini c. Sub magno Sigillo Whether this was before or after the Statute it appeareth not it may seem before for that otherwise it needed not But I find Shardlow to be Justice of Oier in Pickering Forest 17. Aug. An. 8. Edw. I. If it were after it seemeth the Writ to the Justices extended to somewhat out of the Statute and that this Licence was obtained in majorem cautelam But to conclude hereby it appeareth that although we find not the reasons of things done in ancient ages yet nothing was done against the Rules of the Church without special Licence and dispensation The Feast of St. Ambrose mentioned in the Licence was on the fourth of April which commonly is about a week or two before Easter And the Abbat of St. Alban having exempt jurisdiction within the Province of Canterbury granteth this dispensation to hold Assizes in tempore sacro as the Rubrick explaineth it lest the words nostrae jurisdictionis exemptae might be applied to some layick Franchise I assure my self there are many of this kind if they might come to light And as they granted Licence in times prohibited so they censur'd such as offended without Licence as appeareth by the case of Sir Gilbert Plumpton An. 1184. who being to be hang'd at Worcester upon the Sunday for a Rape committed by him the Bishop prohibited execution for that day upon pain of Excommunication c. CHAP. VI. Of the Returns OF the Returns I will not venture to speak much but nothing at all of Essoine and Exception-days for that draweth nearer to the faculty of Lawyers wherein I mean not to be too busie The Returns are set days in every Term appointed to the Sheriff for certifying the Courts what he hath done in