Reliquiae Spelmannia …

Reliquiae Spelmannianae.


Publish'd from the ORIGINAL MANUSCRIPTS.

With the LIFE of the AUTHOR.

Sine dubio, domus Jurisconsulti est totius oraculum Civitatis.


OXFORD, Printed at the THEATER for Awnsham and John Churchill at the Black-Swan in Pater-Noster-Row, LONDON. 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.


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.

[Page] 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

most obliged and
most dutiful Servant


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 [Page] 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 to the Grant? whether it be a part of the Grant, and the modus concessionis, or whether it be a distinct thing, and Aliud from the Grant? ‘For (so the Printed Case represents their Opinion) if the Reservation of the Tenure and the Grant of the Land, be aliud & aliud, two distinct things, in the consideration of the whole Grant made, and the autho­rity given by the said Commission for the making thereof; then the Patent may be void as to the Tenure, and yet good [Page] for the Grant of the Land. But if the Reservation of the Tenure be incident unto the authority and included within it, and the Reservation of the Tenure and the Grant of the Land make up but one entire Grant, so that the one is a part of the other, and the Reservation of the Tenure be Modus concessionis; then the granting of the Land, reserv­ing a diverse or contrary Tenure to that which their [nude] authority did warrant them to reserve, is a doing of Idem alio modo, and so the whole Act is void.’

They who pleaded for the validity of the Letters Patents as to the Lands, and their being void only as to the Tenure; urg'd, among other arguments, That Tenures in Capite were brought into England by the Conquest, but Grants were by the Common-Law; and therefore Grants being more ancient than Tenures, the Tenure must of necessity be aliud from the thing granted. And to prove that this Tenure came in with the Conqueror, they cited Mr. Selden in his Spicileg▪ ad Eadme­rum, p. 194. where he hath that out of Bracton de Acquir. Rerum Dominio. b. 2. Forinsecum servitium dicitur Regale servitium quia spectat ad Dominum Regem & non ad alium, & secundum quod in Conquestu fuit adinventum.

But this Argument and the Authority were both over­ruld; and it was affirm'd, that Tenures were not brought into England by the Conqueror, but were common among the Saxons. Their Answer to Mr. Selden's Opinion, with the Rea­sons upon which they grounded their position, I will transcribe at large from the Printed Case; the Book being very scarce, and this the only Point wherein Sir Henry Spelman is con­cern'd.

It was answered that Mr. Selden in that place does barely recite the words of Bracton, not delivering any Opinion of his own.

For in that Book cited, pag. 170. and in his Titles of Ho­nour, the last Edition. p. 612. We find that he was of another Opinion, and that this Tenure was in use in England in the times of the Saxons.

What were those Thani Majores, or Thani Regis among the Saxons? but the Kings immediate Tenants of Lands, which they held by personal service, as of the Kings person by Grand Serjeanty, or Knights-service in Capite.

The Land so held, was in those times called Thain-land, as Land holden in Socage was called Reveland, so frequently in Dooms-day: Haec terra fuit terra Regis Edwardi Thainland, sed postea conversa est in Reveland. Cokes Instit. Sect. 117.

[Page] After some years that followed the coming of the Normans, the title of Thane grew out of use, and that of Baron and Barony succeeded for Thane and Thain-land.

Whereby we may understand the true and original Reason, of that which we have in the Lord Cromwels Case, 2. Coke 81. That every Barony of ancient time was held by Grand Ser­jeanty; by that Tenure were the Thain-lands held in the time of the Saxons, and those Thain-lands were the same that were after called Baronies.

'Tis true, the Possessions of Bishops and Abbots were first made subject to Knights-service in Capite by William the Conquerour, in the fourth year of his Reign, for their Lands were held in the times of the Saxons: in pura & perpetua Eleemosyna, free, ab omni servitio saeculari.

But he then turned their Possessions into Baronies, and so made them Barons of the Kingdom by Tenure, so that as to them, this Tenure and Service may be said to be in Conquestu adinventum. But the Thain-lands were held by that Tenure before.

As the Kings Thane was a Tenant in Capite, so the Thanus mediocris or middle Thane, was only a Tenant by Knights-service, that either held of a mean Lord and not immediately of the King, or at the least of the King as of an Honour or Mannour, and not in Capite.

What was that Trinoda Necessitas, which so often occurs in the Grant of the Saxon Kings, under this Form. Exceptisistis tribus Expeditione, Arcis & pontis exstructione? (See it in a Charter of King Etbeldred in the Preface to Cokes 6. Report, &c.) But that which was after expressed by Salvo fo­rinseco: Bracton lib. 2. cap. 26. & 35. 12. Edw. 1. Gard 152. 26. Ass. 66. Selden Analect. Anglobrit. 78.

And therefore it was said that Sir Henry Spelman was mi­staken, who in his Glossary verbo feudum, refers the original of Feuds in England to the Norman Conquest.

It is most manifest, that Capite Tenures, Tenures by Knights-service, Tenures in Socage, Frank-almoigne, &c. were fre­quent in the times of the Saxons.

And if we will believe what is cited out of an old French Customary, in a MS. Treatise of the Antiquity of Tenures in England, which is in many mens hands, all those Tenures were in use long before the Saxons, even in the times of the Britains, there it is said▪ The first British King divided Bri­tain into four parts,

[Page] And gave one part to the Arch-Flamines to pray for him and his posterity.

A second part he gave to his Earls and Nobility to do him Knights-service.

A third he divided among Husbandmen, to hold of him in Socage.

The fourth part he gave to Mechanical persons to hold in Burgage.

But that Testimony was wav'd, there being little certainty or truth in the British Story before the times of Caesar. Nei­ther would they make use of that, which we are taught by William Roville of Alenzon in his Preface to the Grand Cu­stomier of Normandy, that all those Customs (among which these Tenures are) were first brought into Normandy out of England by Edward the Confessor.

Besides, that which hath been said, we find Feuds both the name and thing in the Laws of those times, among the Laws of Edward the Confessor, cap. 35. where it is thus provided,

Debent enim universi Liberi homines, & secundum feo­dum suum, & secundum tenementa sua, Arma habere, & illa semper prompta conservare, ad tuitionem Regni, & ser­vitium dominorum suorum, &c. Lambard. Archaionom. 135.

This Law was after confirmed by William the Conqueror, vid. Cokes Instit. Sect. 103.

As these Tenures were common in those times, so were all the fruits of them, Homage, Fealty, Escuage, Reliefs, Wardships.

For Releifs, we have full testimony in the Reliefs of their Earls and Thanes, for which see the Laws of King Canutus, cap. 66, & 69. The Laws of Edward the Confessor, cap. de Heterochiis, And what out of the Book of Dooms-day Coke hath in his Instit. Sect. 103. Camden in Bark-shire. Selden in Eadmer. p. 154.

That Wardships were then in use, and not brought in by the Normans, as Camden in his Britt. 178. Nor by Hen. III. as Randolph Higden in his Polichronicon; and others (not understanding him) would perswade. Vid. Seldens Notes on Fortescue. 51.

Among the priviledges granted by Edward the Confessor to the Cinque-ports, we meet with this, that their heirs shall shall not be in Ward. Lambards Perambulat. of Kent. 101.

And in the Customs of Kent, which are in the Magna Charta of Tottels Edition, and in Lambards Perambulation, [Page] There is a Rule for the Wardship of the heir in Gavelkind, and that he shall not be marryed by the Lord. And those Customs say of themselves, that they were Devant le Conquest, & en le Conquest.

For the Antiquity of Wardships in England and Scotland, see also Hect. Boet. lib. 11. Buchanan rerum Scot. lib. 6. and the Laws of Malcolm II. which prove the Antiquity of Ward­ships in Scotland, and therefore in England before the Nor­man Conquest; for in those times it is probable the Laws of both Nations did not much differ, as for the times after, it ap­pears they did not, by comparing their Regiam Majestatem, and our Glanvil. Neither is the bare conjecture of Sir Henry Spelman sufficient, to take away the force of those Laws. Vid. Spelman. Glossar. verbo Feudum.

Upon this (amongst other reasons) they did conclude, That upon consideration of the Authority given, and Grant there­upon made, the reservation of the Tenure cannot be said to be Aliud. So. a separate and distinct thing from the Au­thority of Granting the Land, but rather included within it. And that the Reservation of the Tenure, though it be not Ipsa concessio, the Grant it self, yet it is Modus concessionis, and a part of the Grant; and that therefore the Authority being not pursued in that, the whole Grant is void.

These were their Arguments for Tenures among the Sax­ons; as they are set down in the Case it self, drawn up and Printed by Order of the Lord Deputie. Sir Henry Spelman has severally consider'd both the Truth and Force of them; not strictly confining himself to their Reasons and Reflections, but taking occasion from thence to write a very elaborate Trea­tise of the Nature and Original of Feuds and Tenures.

The two discourses, Of the ancient Government of England, and Of Parliaments, are both of them publisht from the Origi­nal Manuscripts in the hands of Mr. Charles Spelman of Cong­ham in Norfolk, son of Sir John Spelman, and Grandson to Sir Henry.

That, concerning the Original of the four Terms, was pub­lisht in the Year 1684. from a very uncorrect and imperfect Copy, which probably had been taken, when the Author first wrote the Discourse. The Original Manuscript (with very many Additions and Corrections, that Sir Henry afterwards made in it) is preserv'd in the Bodleian Library; from whence the Work is now printed entire.

The Apology for Arch-bishop Abbot, by an unknown Au­thor, and the Answer to it by Sir Henry Spelman; are in the [Page] pos [...]ession of Mr. Henry Spelman (son to Mr. Clement Spel­man, who was Sir Henry's youngest son) both written with our Author's own hand. To this Answer he refers us in his Glossary▪ under the title Muta Canum.

The Letters relating to the same subject, are in a Colle­ction of Original Papers and Records, deliver'd to Mr. Whar­ton by Arch-bishop Sancroft, and now in the hands of Mr. Ch [...]wel.

The Treatise of the Original of Testaments and Wills, and his Icenia, or the description of Norfolk▪ are both pub­lisht from the Author's own Copies, in the Bodleian Library. The latter of these is not so compleat, as he had intended to make it.

The Catalogue of the Earls Marshal of England, and the Dissertation de Milite, were evidently design'd for a part of his Glossary; as appears from the manner of the Composition, and from several passages in them. But when the Papers were deliver'd to Sir William Dugdale, for the publication of the second part of that Work, these two (it seems) had been mislaid. The account of the Earls Marshal is (I fear) imper­fect in some places; but will however be of good use towards a more accurate Catalogue of them.

The succession of the Family of Sharnburn, is a peice of Antiquity that was exceedingly valu'd by Sir Henry Spelman; as appears both from his 1Recommendation, and from the use that he has made of it in some part of his Works. Hav­ing met with a Copy in Mr. Ashmole's Museum at Oxford, I thought it might not be improper to publish it among his Remains.

The Dialogue concerning the Coin of the Kingdom, and the Catalogue of the Places of the Arch-bishops and Bishops of this Realm; are in the possession of Mr. Charles Spelman. The first is written in a hand not unlike Sir Henry Spelman's, only somewhat less; which (if it was really his) may have been occasion'd by his writing it while he was young. For it 2ap­pears to have been compos'd in the 36. of Elizabeth; when Sir Henry was but about thirty three years of age. The Catalogue was drawn up 3in the time of King James I. for the use of the then Arch-bishop of Canterbury; as I gather from those words in the beginning, written in a different hand, Pro Domino Archiepiscopo Cantuar. I dare not positively affirm, that ei­ther [Page] of these is Sir Henry Spelman's; but the finding them a­mong his other Papers, and the accurate knowledge of our English affairs which appears in both, incline me to believe that he was really the Author of them; and for that reason, they are printed upon this occasion.

This is all I have to say concerning the Posthumous Works of Sir Henry Spelman; which I was willing to make publick, for the Author's reputation and the service of the World.

THE LIFE OF Sir Henry Spelman Kt.

Birth. HENRY SPELMAN was born at Congham, a Town in Norfolk near Lynn. He was de­scended from an ancient Family of that name; who, about Henry the III's▪ time were seated in Hampshire, but afterwards remov'd into Suffolk, and from thence into Norfolk, about 200. years since. His Father's name was Henry Spelman Esq as I learn from a Pedigree of the Family under Sir Henry's own hand; and not John, as a 1late Writer has told us. His Mother was Frances, daughter of William Sanders of Ewel in Surrey Esq.

Education. After his Education at School, he was sent to Trinity Col­ledge in Cambridge, before he was quite 15. years of Age, and indeed (as he 2himself complains) before he was ripe for the University. He had not stay'd there two years and a half, but his Father dy'd; and he was call'd home to assist his Mo­ther in the management of the Family. Afterwards, when he came into the World, and betook himself to Writing, and the study of our Laws, he found the want of University Edu­cation; and condoles his misfortune in that particular, in a 3Letter to his friend Mr. Richard 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.

Sent to Lincoln's Inn. 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 [Page] 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.

Marri­age 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 1High 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 Employ­ments.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 2Author 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.

[Page] Knighted 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.

Came to live in London. 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 (1 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.

Study of our anci­ent Hi­storians. 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, [Page] 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 1 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 are all for profit, taking what we find at market, without enquiring from whence it came. With this honest freedom does he censure his own times. Not but then (as well as now) the studies to which he directs, were pursu'd and encourag'd by Persons of the highest Sta­tions in the Law; and some of them were so far concern'd for the improvement of ancient Learning, that they form'd them­selves into a Society of Antiquaries for that purpose: as we learn from Sir Henry's Introduction to his Law-terms. With this design of understanding the foundation of our Laws, Ec­clesiastical as well as Civil; he read over the Fathers, Councils, and as many of the middle-age Historians as he could meet with, whether foreign or domestick, Printed or Manuscript. The roughness of style could not be very pleasing; but that which chiefly discourag'd him, was the great number of strange and obsolete words; which are very hard to be understood, and yet oftentimes are so considerable, that the meaning of the whole sentence depends upon them. However, he went forward; and where he met with any such word, set it down in it's proper order; with a distinct reference to the place: till by degrees he had collected a variety of instances, and by com­paring the several passages where the same word occurr'd, was able to give a tolerable conjecture at the true signification. After he had made a considerable collection of this kind, and [Page] observ'd how by this means the reading of the old Histo­rians became every day more easie and pleasant; he begun to digest his materials; and from the several quotations, to draw a judgement of the strict acceptation of each word, in the re­spective Ages wherein it was used. For he consider'd, that what had been a discouragement to him, would be so to others too; and that a work of this nature, would remove one of the greatest difficulties in the reading of our old Historians. But tho' a number of instances gave him good satisfaction, as to the several Words; yet finding that many of our Laws since the Conquest are drawn from the Constitution of the Saxons, and that many obsolete Terms in our Latin Historians must be of a pure Saxon Original; he despair'd of ever accomplish­ing his design, for want of understanding that Language. At least, he was certain, that the knowledge of it must needs lead him to a clearer interpretation of many obscure passages, and enable him (throughout the whole Work) to deliver his Opinion with a better assurance. This Language, at that time, was not to be learnt without great difficulty: Little assistance was to be expected from conversation, in a study which few People of that Age ever minded. Nor had he the directions either of Grammar or Dictionary; as we at this day are accommodated with both, very accurate in their kind. However, he set heartily about it; and tho', I think, he ne­ver perfectly conquer'd it; yet (under so many inconveni­encies) it is a greater wonder that he should attain so good a knowledge, than that he should not make himself an abso­lute Master of it.

Glossary. After he had made large Collections, and got tolerable knowledge of the Saxon Tongue; he resolv'd to go on with his undertaking: but because he would not depend altogether upon his own Judgement, he Printed a sheet or two for a Specimen, whereby his Friends might be able to give him their opinion of the design. 1He was encourag'd, on all hands by the most Learned Persons of that Age; at home by Arch­bishop Usher, Bishop Williams then Lord Keeper, Mr. Selden, and Sir Robert Cotton; abroad, by Rigaltius, Salmasius, Pie­reschius, and others; as also Bignonius, Meursius, and Lin­denbrogius, whose assistances he very gratefully acknowledges, in his Preface to the work. 2Upon their encouragement, he prepar'd part of it for the Press, and offer'd the whole Copy to Mr. Bill the King's Printer. He was very moderate in his demands; desiring only five pound, in consideration of his [Page] labour, and that too to be paid him in Books. But Mr. Bill absolutely refus'd to meddle with it; knowing it to be upon a subject out of the common road, and not likely to prove a saleable work. So that Sir Henry was forc'd to carry it on at his own charge; and in the year 1626. publisht the first part of it, to the end of the Letter L. Why he went no farther, I cannot tell; nor has he so much as hinted to the cause of it, either in his Preface, or any part of his works, that I know of. Monsieur du Fresne (who very much laments that he should not publish the second part himself) fancies that his design of compiling the English Councils, might be the occasion of his breaking off in the middle of his Glossary. But 'tis not likely, that a Person of Sir Henry Spelman's settl'd Temper and Re­solution, should leave one work imperfect, to make way for another. I have heard it affirm'd by others, that he stopped at the Letter M. because he had said somethings under Magna Charta, and Magnum Consilium, that his Friends were afraid might give offence. But I believe, the true reason was this: Printing it at his own charge, he must have laid out a consi­derable summ upon the first part, and having a large Family, there was no reason why he should venture as much more, without the prospect of a quicker return, than either the cold­ness of the Bookseller, or the nature of the work gave him. It fell out accordingly; for, eleven years after, the greatest part of the Impression remain'd unsold; till in 1637. two of the London Booksellers took it off his hands. And (tho' he should afterwards have had encouragement to go forward) that was not a time to speak freely, either of the King's Preroga­tive or the Liberties of the Subject; both which would upon many occasions fall in his way. Besides, that the finishing the second part, with the same copiousness and accuracy as he had done the first, would have been too heavy a task for a Man of his great Age.

The Author has told us in an Advertisement before the book, that he chose to entitle his work Archaeologus, rather than Glossarium, as we commonly call it. For a Glossary, strictly speaking, is no more than a bare explication of Words; whereas This does more especially treat of Things, and contains entire Discourses and Dissertations upon several of the heads therein mention'd. For which reason, it is not only to be consult­ed upon occasion, like our common Lexicons; but ought to be carefully perus'd and study'd, as the greatest Treasure extant, of the ancient Customs and Constitutions of England. Before the Edition of 1626. he has this remarkable Dedication:


Deo, Ecclesiae, Literarum Reipub.
Sub protestatione de addendo, retrahendo, corrigendo, poliendo,
Prout opus fuerit & consultius videbitur;
Deo clementissime annuente,
HENRICUS SPELMANNUS Omni supplex humilitate D. D.

I have therefore set it down at large, because in the Editions of 1664. and 1687. they have 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.

The se­cond part of the Glossary. 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 1Controversie, about the Antiquity of the Com­mons [Page] 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 1. 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 [Page] 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, tis 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.

Councils. 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 1. 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 [Page] 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.

[...] Councils. 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 1, (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 [Page] 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. 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. 1Mr. 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; 2as 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 [Page] 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 1Manuscript 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 16 [...]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 son Clement Spelman, containing many things relating to Impropriations, and several instances of the judgements of God upon Sacri­ledge. The greatest part of these instances seems to be taken from his History and Fate of Sacriledge, a book still in Ma­nuscript. The Gentleman, for whose sake it was written, dy'd immediately upon the publication of this book; but however it did very good service to the Church. This, Mr. Stephens has made appear, in a Preface to some of his Posthu­mous Works; wherein he instances in several Gentlemen who were induc'd by the reading of this book, to restore their Impropriations to the Church. That part of the Preface is since reprinted before an Edition of this book which came out in the Year 1668. and therefore I shall not repeat the Catalogue of them in this place. I will only beg leave to [Page] mention a more modern benefaction of this kind; as it is set down in the late Edition of Camden's Britannia 1. Scarce two miles from Arksey (in the West-riding of York-shire) lies Adwick in the street, memorable on this account, that Mrs. Ann Savill (a Virgin benefactor yet living) daughter of John Savill of Medly Esq purchased the Rectory thereof, for which she gave about 900l. and has settl'd it in the hands of Trustees for the use of the Church for ever; and this from a generous and pious principle upon the reading of Sir Henry Spelman's noted Treatise, De non temerandis Ecclesiis.

Some reflections were made upon this Discourse, by an un­known Author; who could not forgive Sir Henry for paying so much respect to Churches, and particularly for applying the word Ecclesia to a material Church; urging that this term belongs only to the Assembly or Congregation. This Sir Henry takes notice of in his Glossary, under the title Ec­clesia, producing some instances of the use of that word in an­cient Authors: and afterwards honoured it with a fuller A­pology. It is publisht by Mr. Stephens, at the end of his Larger work of Tithes, (so call'd with respect to the Smaller Treatise De non temerandis Ecclesiis;) together with a pious Epistle to Mr. Richard Carew, who in a Letter to the Au­thor had express'd his dissatisfaction in some particulars of this Work.

Larger Work of Tithes. His next book upon this subject, is that which he calls the Larger work of Tithes; publisht by Mr. Jerem. Stephens in the Year 1646. with an excellent Preface by the same hand. In this Discourse, he asserts Tithes to the Clergy, from the Laws of Nature and of Nations; from the Commands of God in the Old and New Testament; and from the particular Constitution of our own Kingdom.

The Hi­story and Fate of Sacri­ledge, MS Another work, in vindication of the Rights of the Church, is still in Manuscript, with this title; The History and Fate of Sacriledge, discover'd by examples of Scripture, of Hea­thens, and of Christians; from the beginning of the world continually to this day, by Sir Henry Spelman Kt. Anno Do­mini 1632. The account which the 2 Oxford Antiquary gives us of it, is this: ‘In the Year 1663. Mr. Stephens began to print the History of Sacriledge, design'd and began by Sir Henry Spelman, and left to Mr. Stephens to perfect and pub­lish. But that work sticking long in the Press, both the Copy, and sheets printed off, perisht in the grand Conflagra­tion of London, 1666.’ I have been told by a Learned Di­vine [Page] ▪since, a Prelate of our Church,) that Mr. Stephens was forbidden to proceed in an Edition of that Work, lest the pub­lication of it should give offence to the Nobility and Gentry▪ But, whatever was the occasion of its continuing in the Press till the Fire of London; it has been taken for granted, that the whole book was irrecoverably lost: and I was satisfied of the same▪ upon Mr. Wood's relation of the matter; till exa­mining some Manuscripts which were given to the Bodleian Library by the late Bishop of Lincoln, I met with a tran­script of some part of it. Upon further enquiry, I found o­ther parts, in other places: so that now the Work seems to be pretty entire.

He begins with a general definition of Sacriledge; then reckons up various kinds of it, as to Places, Persons, and Things; after which, he enumerates (at large) the many sig­nal punishments of it among Heathens, Jews, and Christians; describing more particularly the instances of that kind, which have formerly happen'd in our Nation. Then, he proceeds to give an account of the attempt upon the lands of the Clergy in Henry the IV's. time, and how it was disappointed; after­wards he descends to the suppression of Priories-Alien in the Reign of Henry V. and so on to the general Dissolution under Henry VIII. Here, he shows us the several steps of the Dis­solution; the King's express promise to employ the Lands to the advancement of Learning, Religion, and Relief of the Poor; with the remarkable Calamities that ensu'd, upon the King, his Posterity, his principal Agents in that affair, the new Owners of the Lands, and the Lords who promoted and passed the Dissolution Act: Concluding with a Chapter, which contains The particulars of divers Monasteries in Norfolk, whereof the late Owners since the Dissolution are extinct, or decay'd, or overthrown by Misfortunes and grievous Acci­dents.

This is a short account of a large Work: wherein the judi­cious Author is far from affirming, that their being concern'd in this Affair (either as promoters of the Alienation or Posses­sors of the Lands) was directly the occasion of the Calamities that ensu'd. On the contrary, he declares more than once, that he will not presume to judge of the secret methods of God's Providence; but only relates plain matters of fact, and leaves every man to make his own application. Tho' it must be granted, that many of the instances (and those well as­serted) are so terrible in the Event, and in the Circumstances so surprising; that no considering Man can well pass them [Page] over, without a serious reflection. This Discourse might have appear'd among his other Posthumous Works; but that some persons in the present Age would be apt to interpret the mention of their Predecessors (in such a manner, and on such an occasion) as an unpardonable reflection upon their Fa­milies.

Codex Legum Veterum MS. These, I think, are all the Treatises that he either wrote or publisht about the Rights of the Church. The next Work that I shall mention, is a History of the Civil affairs of the Kingdom, from the Conquest to Magna Charta, taken from our best Historians, and generally set down in their own words. It is a Manuscript in the Bodleian Library, and the title which Sir Henry has given it, is this: Codex Legum Ve­terum & Statutorum regni Angliae, quae ab ingressu Guli­elmi, usque ad annum nonum Henrici tertii edita sunt; Hoc est, ante primum Statutum omnium Impressorum in libris ju­ridicis, quod Magna Charta appellatur, ab Edwardo I. con­firmata. E variis monimentis, Authoribus, Manuscriptis, & antiquis paginis concinnatum. Opere & Studio Henrici Spel­man collecta. Anno Dom. 1627. With the Imprimatur of Sir John Bramston, July 6. 1640. Many Instruments in this Collection, are printed in the Second Volume of his Coun­cils; and it might be much improv'd from some Historians that have been publisht since his time.

De Se­pultura. In the Year 1641. there came out a Discourse de Sepul­tura, by Sir Henry Spelman, concerning the Fees for Burials. 'Tis likely, that it was compos'd on occasion of his being one of the Commissioners for regulating the Fees, in our Civil and Ecclesiastical Courts. The Treatise consists of five sheets in 4to. so that I wonder why J. A. in his Preface to the Glos­sary, should tell us that is was no more than two leaves.

Aspilogia His Latin Treatise entitled Aspilogia was next publish'd (with Notes) by Sir Edw. Bish Anno 1654. in Folio. In this (tho' it was one of his first Pieces) he discourses with great va­riety of Learning concerning the Original and different kinds of those Marks of Honour, since call'd Arms.

Book of Abbrevi­ations. He also drew up a scheme of the Abbreviations and such other obsolete forms of writing, as occur in our old Manu­scripts; to facilitate the reading of ancient Books and Re­cords. There are several Copies of it in Manuscript; as, one in the Bodleian Library; another in the Library of the late Dr. Plot; a third in the possession of Mr. Worsley of Lincolns-Inn; and 'tis probable, there may be more of ▪em abroad in other hands.

[Page] [...] Two other things he was concern'd in; which I shall but just mention. The Villare Anglicum, or a view of the Towns in England, (publisht in the Year 1656.) was collected 1 By the appointment, at the charge, and for the use of that [...] worthy Antiquary Sir Henry Spelman. And Mr. Speed, in his Description of Great Britain, acknowledges that he re­ceiv'd the account of Norfolk from the same Learned Knight. As for his Posthumous Works which are publisht together on this occasion, I shall give a more particular account of 'em in the Preface; and in this place shall only add an instance or [...]two, of his Encouragement to Learning and Learned Men. It was he, who first advis'd Dr. Wats to the study of Antiqui­ties, and when he had arriv'd to a good skill in those matters, put him upon a new Edition of Matthew Paris. The Do­ctor, in the Preface to that excellent Work, makes this grate­ful mention of his Friend, and Patron: Tertium Manuscri­ptum accommodavit Nobilis ille Doctissimusque Dominus Hen­ricus Spelmannus Eques Auratus, Eruditionis reconditioris, Judicii acerrimi Vir, nostrae Britanniae Lumen Gloriaque; Amicus insupermeus singularis, in studiis adjutor praecipuus; & qui me primus ad Antiquitates eruendas tam verbo quam exemplo aliquoties stimulavit erudivitque.

He was likewise a great Favourer of Sir William Dugdale; who had been recommended to him by Sir Simon Archer, a Gentleman of Warwickshire, very well versed in Heraldry, and the affairs of our own Nation. At that time, Mr. Dods­worth (who was much assisted and encouraged by Sir Henry Spelman) had got together a vast collection of Records, relat­ing to the Foundation of Monasteries in the Northern parts of England. Sir Henry thought that these might be very well improv'd into a Monasticon Anglicanum; and lest the design should miscarry by Mr. Dodsworth's death, he pre­vail'd upon Mr. Dugdale to join him in so commendable a Work; promising to communicate all his Transcripts of Foun­dation Charters, belonging to several Monasteries in Norfolk and Suffolk. For his further encouragement, he recommend­ed him to Thomas Earl of Arundel, then Earl Marshal of England, as a person very well qualify'd to serve the King in the Office of Arms. Accordingly, upon his character of him (seconded by the importunity of Sir Christopher Hatton) he was settl'd in the Heralds-office; which gave him an oppor­tunity to fix in London, and from the many assistances there, to compile the laborious Volumes which he afterwards publisht.

[Page] His revival of the old Saxon Tongue, ought to be reckon'd a good piece of service to the study of Antiquities. He had found the excellent use of that Language in the whole course of his Studies; and very much lamented the neglect of it, both at home and abroad: which was so general, that he did not then know one Man in the world, who perfectly knew it. Paulatim (says he) ita exhalavit animam, nobile illud Ma­jorum nostrorum & pervetustum idioma; ut in universo (quod sciam) orbe, ne unus hodie reperiatur; qui hoc scite perfecteve calleat; pauci quidem, qui vel exoletas literas us­quequaque noverint. Hereupon he settl'd a Saxon Lecture in the University of Cambridge, allowing 20l. per An. to Mr. Abraham Wheelock; who tells us, 1that upon his advice and encouragement, he spent the best part of seven years in the study of that Language: Magnam septennii quod effluxit partem consumpsi Saxonum nostrorum inquirendo Monu­menta, eorumque vetus idioma (Veritatis & pacis Catholicae magistram) perquirendo; ne nobilissimi Viri & in his studiis monitoris mei honoratissimi [...] D. Henrici Spelmanni, Antiquitatum nostrae gentis instauratoris eximii, consilio de­fuissem. This stipend was intended to be made perpetual; but both He and his eldest Son dying in the compass of two years, the Civil Wars breaking forth, and the Estate being sequester'd; the Family became uncapable of accomplishing that Design. Nor indeed was that a Time for settlements of this kind, when such a terrible storm threatn'd the Universities and the Revenues that belong'd to 'em.

Acquain­tance. After he came into business, he was intimately acquainted with the most considerable Persons of that Age. He calls Mr. Camden, his ancient Friend; and how entire a Familiarity there was between him and Arch-bishop Usher, we are in­form'd from the Life and Letters of that Learned Primate. To these I might add Sir Rob. Cotton, Mr. Selden, Olaus Wor­mius; with Peireschius, Meursius, Beignonius, and others of great note both at home and abroad, whom he himself occasi­onally mentions, as the chief Encouragers of his Glossary. Upon the whole matter; as his Loyalty, Wisdom, and Ex­perience in publick Affairs, would sufficiently recommend him to the great States-men of his time; so his eminent Piety and Learning must needs make him highly esteem'd a­mong Divines and Scholars.

Children. He had eight Children, four Sons and four Daughters. His eldest Son (the heir of his Studies, 3as he calls him) was John 25[Page] Spelman Esq a Scholar and a Gentleman; who had great assurances of favour and encouragement from King Charles I. This good Prince sent for Sir Henry Spelman, and offer'd him the Mastership of Suttons Hospital, with some other things, in consideration of his good services both to Church and State. But after his humble thanks to his Majesty, he told him, that he was very old and had one foot in the grave; and that it would be a much greater obligation upon him, if his Majesty would please to consider his Son. Accordingly, the King sent for Mr. Spelman; and with many expressions of kindness, im­mediately [...] Spelmanconferr'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. 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 1publisht 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 24th. 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.
  • [Page] 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. 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 [...]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.

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.

[Page 2] [...] d [...]fini­t [...]n of a [...]. A Feud is said to be Ʋsus fruct [...]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, Li [...]e or Lives) the other Hereditary and perpetual. As for Temporary [...]eu [...]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.

Th [...] [...]. 1 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 2pro­priety 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.

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. Instances of Feuds among the [...].Examples hereof are in all Nations. 3King 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 4in the Levites: for Knight-service, Tenure in Capite, and Grand Ser­jeanty 5in the Military men, which serv'd the King personally by monthly [Page 3] 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 lands and portion of the Levites was given to do the service of the Taber­nacle; 1the lands of the other tribes, to fight the battels of the Lord a­gainst his idolatrous enemies, and to root them out. Thus may fancy couple the remotest things. To come lower down and nearer home, 2 Pausanias tell's us, that when Brennus (who they say was a Britain) invaded Greece with an army of Gauls; every horseman of the better sort, had two other Among the Gauls.horsemen to attend and second him (as his Vassals) and they three toge­ther were called [...] Trimarcesiam, i. e. a society of three horsemen. 3But Caesar saith, that the nobler Gauls in his time, had (according to their abilities) many horsemen attending them in war, whom by a German word he calleth Ambactos, which properly signifieth servants, vassals, workmen, Ambact [...].and labourers; yet he by a fairer name expoundeth it there 4in Latin Cli­entes, and in another place 5calleth them among the Germans Comites & fa­miliares, as accounting them (like Abraham's 6318. Souldiers) to be all their Lord's followers and of his family. Tacitus 7likewise nameth them Comites, as companions and followers; quod bello sequi Dominum coguntur, saith 8 Cujacius. But Tacitus further saith, Gradus quinetiam ipse Comitatus habet judicio ejus quem sectantur; that there were degrees in those companies, as he whom they followed did appoint. Like them, perhaps, in after-ages of Earls, Ba­rons, Knights, &c. But how the Comites or Ambacti were maintained, neither Caesar nor yet Tacitus have related. As for such portions of land, as we call Knights-Fees, they could not then have any; for Caesar 9speaking of the Germans saith, (and so it appears by Tacitus) 10 neque quisque agri modum certum, aut fines proprios habet, &c. ‘That no man hath any certain estate or peculiar bounds of lands; but the Magistrate and Lords (of the place) assign from year to year to kindreds and such as live together, what quan­tity of land, and in what place they think good; and the next year force them to remove.’ The reason you may see in Caesar, who 11also sheweth, ‘That they had no common Magistrate; but the Lord of the Town or ter­ritorie set what laws he would among his followers or Ambactos.

These laws, the Goths, the Swedes, the Danes, and Saxons, called Bilagines; of By, which in all these languages signifieth a town, and lagh or laghen which signifieth laws, as Gravius 12 Suecus, and our Saxon Authors testifie. And tho' Jornandes a Spanish Goth writeth it after the Spanish corruption Bella­gine [...], yet we in England keep the very radix and word it self By-laws even unto this day, tho' diverted somewhat from the sense that Caesar speaks of. For we call them Town-laws or By-laws which the Townsmen make among themselves; but Caesar sheweth that the Lords imposed them. Herewith a­greeth, that of Tacitus, or some other Ancient, who speaking of the Germans saith, Agricolis suis jus dicunt, They give laws to them which dwell upon their lands. For I take Agricolis here in the larger sense, to extend to all that dwell upon the Lord's lands (as well his military followers as his husband­men) in the same manner as solicolae containeth all that live upon the soil, ruricolae all that live in the Country, and coelicolae all that live in heaven.

These Lordships of Towns, which Caesar speaketh of, were after by the Normans called Maneria. The Ambacti or Comites, and these which he saith secta­bantur Dominos suos, were called Vassalli, and sectatores manerii sive Curiae Domini Vassals and Suiters of Court. The Bilagines or Town-laws were called Consue­tudines and customs of the Mannor. The jurisdiction, which the Lord had [Page 4] over his followers and suiters, was called the Court Baron, and the portions of land, &c. assigned to his followers for their stipend or maintenance, were at first called Munera, after Beneficia; and lastly Feuda or Tenant-lands, which were of two sorts, one for military men called Feudum militare and Feudum nobile, tenure by Knights-service; the other for husbandmen call'd therefore Feudum rusticum & ignobile, tenure in Socage, or by the Plough.

Thus it appeareth that Feuds and Tenures and the Feudal law it self, took their original from the Germans and Northern Nations. In such condition therefore (how obscure soever) as Caesar and Tacitus left them to us, 1 Ge­rardus Niger the Consul of Milan (who flourished about A. D. 1176. and first composed them into a book) taketh them up as he there findeth them, and speaking of the times of Caesar and Tacitus (as having the forementioned passages under his eye) saith, Antiquissimo tempore sic erat in Dominorum pote­state connexum, ut quando vellent, possent auferre rem in feudum à se datam. And this agreeth with Caesar, by whom it seemeth in the places before mentioned, that the Ambacti or followers of the Germans had in those times either no land at all, or no estate at all in their land, or first but at the will of the Lord, and then but for one single year. Which Gerardus also confesseth to have been the condition of the eldest sort of feudataries, for he saith pre­sently after his former words, Postea vero eo ventum est, ut per annum tantum stabilitatem haberent (res in feudum datae). Thus for another while their Feu­dal Vassals (whom here he calleth fideles, and we now tenants by Knights-Service) enjoyed their feuds no otherwise than from year to year at the plea­sure of their Lords, either by grant or sufferance, 2till further grace con­firmed them to them for divers years, and at length for term of life, which Gerardus also presently there declareth, saying, Deinde statutum est ut usque ad vitam fidelis producerentur (feuda.) In this manner stood the principal feuds themselves, even those of Earldoms and Dukedoms (which they call feuda majora and feuda regalia) in the latter time of the Saxons, till the coming of the Conquerour. But as touching the lesser feuds which we call Knights-Fees, I find nothing in Abby-books, otherwise than a numerous multitude of Leases and Grants made by Bishops and Abbats to their followers for term of life, without mention of Tenure or Feudal service. Yet I must confess that there is a notable precedent 3left us by Oswald Bishop of Worcester in the time of King Edgar, who in granting out the lands of his Bishoprick unto his followers, for life or three lives, imposed upon them by a solemn Instrument, ratified by the King himself, a multitude of services and charges, as well military as civil: which after you shall here see, and then consider how and whether they conduce to our Feuds or not.

Tenu [...]e [...] [...]r Li [...]e. If we understand them to be Feuds among the Saxons or of that nature, then are we sure they were no more than for life, and not inheritable nor stretching further, without further grace obtained from the Lord. For which purpose Conradus Salicus (a French Emperour, but of German descent) going to Rome about fourty five years before the time of our King Edgar (viz. sub An. Dom. 915.) to fetch his Crown from Pope John X. made a Constitution upon the petition of his Souldiers: That filii or aviatici, the sons, or if no Sons were living the Nephews or Grandsons (as they call them) of some of them, should succeed in the Feud of their Father. (See the Constitution in the beginning of the fifth book of Feuds.) But Gerardus noteth that this law settled not the Feud upon the eldest Son, or any other Son of the Feu­datarie particularly; but left it in the Lord's election to please himself with which of them he would. After this, Feuds were continued in divers places by several increments to the third, fourth, fifth, sixth and seventh generation, and sometime (for want of lineal issue) collaterally to the brother, as Ge­rardus [Page 5] testifieth; but whether by some positive law, or by the munificence of the Lords, he doth not tell us; nor when or by whom they were made perpetual and hereditary; tho' he confesseth, that at last they grew to be extended in infinitum, and then they began to be settled upon the eldest Son, who formerly had no preheminence above a younger brother. But while they stood sometimes produced in this manner by the indulgence of Princes, to the third, fourth, or fifth generation, &c. some men of learning have concluded them to be hereditary, as tho' there were no medium be­tween a limitation (how far so ever extended) and infinitum.

How Feuds be­came he­reditary. To pass by that; let us now go on in examination, when and how Feuds became Hereditary. Some suggest a shew of such a matter under the two Othones, German Emperours (who succeeded one the other about the year 973.) But to rest upon the common and received opinion (which we shall hereafter more at large declare,) the truth is, that when Hugh Capet usur­ped the Kingdom of France againgst the Carolinges, he to fortifie himself, and to draw all the Nobility of France to support his Faction about the year 987. granted to them in the year 988. that whereas till then they enjoyed their Feuds and Honors but for life or at pleasure of their Princes; they should from thenceforth for ever hold them to them, and their heirs, in Feudal manner by the Ceremony of Homage, and oath of Fealty: And that he would accordingly maintain them therein, as they supported him and his heirs in the Crown of France; which they joyfully accepted.

Feuds he­reditary in England. This was a fair direction for William of Normandy (whom we call the Conquerour) how to secure himself of this his new acquired Kingdom of En­gland; and he pretermitted not to take the advantage of it. For with as great diligence as providence, he presently transfer'd his Country-customs into England (as the Black book of the Chequer witnesseth) and amongst them (as after shall be made perspicuous) this new French custom of mak­ing Feuds hereditary, not regarding the former use of our Saxon Ance­stors; who, like all other Nations, save the French, continued till that time their Feuds and Tenures, either arbitrary or in some definite limitation, according to the ancient manner of the Germans, receiv'd generally through­out Europe. For by the multitude of their Colonies and transmigrations into all the chiefest parts thereof, they carried with them such Feodal rights, as were then in use amongst them; and planting those rites and customs in those several Countries where they settled themselves, did by that means make all those several Countries to hold a general conformitie in their Feuds and Military customs. So by the Longobards they were carried into Italy, by the Saliques into the Eastern parts of France, by the Franks into the West part thereof, by the Saxons into this our Britain, by their neighbours the Western Goths (who communicated with the Germans in manners, laws, and customs,) into Spain; and by the Eastern Goths into Greece it self, and the Eastern parts of Europe, &c. These (I say) carried with them into the parts of Europe, where they settled, such ancient Feudal customs, as at the time of their transmigration were in use among them. But the more prevalent and more generally receiv'd customs, were those that were in use or taken up in the time of Conradus the Emperour, and when Feuds became heredi­tary; for on them especially is the Feudal Law grounded and composed, tho' enlarg'd oftentimes by Constitutions of the Emperours, and spread a­broad into divers Nations by their example, countenance, or authority. Wherein the Court of Milan was chiefly followed in rebus judicatis (as ap­peareth by Duarenus 1and Merula 2;) but reserving unto every Nation their peculiar rights and customs. 3For it was generally received into every King­dom, and then conceived to be the most absolute law for supporting the [Page 6] Royal estate, preserving union, confirming peace, and suppressing robberies, incendiaries, and rebellions. I conclude with Cujacius, who upon the above­cited passages of Gerardus Niger, saith, 1 Quam aliam Feudorum originem quaeri­mus? His veluti incrementis paulatim feuda constituta sunt; quae & post Conradum usus recepit, ut transirent ad liberos mares in infinitum, &c.

The great growth of [...] [...]s to title. The Military and Lay-Feuds being thus advanced from an arbitrary con­dition to become perpetual and hereditary, 2did now in ordinary account leave their former name of Beneficia (which were only temporary for years, or life) unto the Livings of the Clergy, and retained to themselves the pro­per name of Feuds, whereby they were produced to be perpetual and here­ditary. Cujacius therefore speaking of them both, saith, 3 Feudum differt a benefi­cio, quod hoc temporaneum fuit, illud perpetuum. And treating in another place of these beneficiarii and temporarii possessores, he saith further, 4 Iisdem postea c [...]pit concedi feudum in perpetuum, quod est verum, & proprium Feudum. Con­cluding in a third place, 5that Propria Feudi natura haec est, ut sit perpetua. So that Cassineus in the Feuds of Burgundy saith, 6that Omne Feudum quocun­que modo acquisitum fit haereditarium, cum successione sit redactum ad instar Allodia­lium: That all Feuds by what means soever they be acquired, are made hereditary; in so much as by the continual succession of the children into the Feuds of their Fathers, the Feuds are now brought to be like Allodial or pa­trimonial inheritances. Thus Feudum (which at first was but a tottering possession, ad voluntatem Domini) growing at length to be an irrevocable estate, descending by many successions from son to son, became at last to be an absolute inheritance, and thereupon the words themselves Feudum and Haereditas in common use of speech

(Quem penes arbitrium est & jus & norma loquendi)

to be voces convertibiles, and by a fair metonymia each to signifie other. For as Horace further saith,

—Verborum vetus interit aetas,
Et juvenum ritu florent modo nata vigentque.

Aptly 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.

No pro­per Feuds before the Conquest. 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.

That none of our Feodal Words, nor Words of Tenure, are found in any Law or ancient Charter of the Saxons.

What Te­nures were in use a­mong 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.

Tenures when first used. 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 Knight­service, 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 Translati­on of Sax­on Char­ters.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 f [...]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. No Feo­dal words among the Saxons.

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 [Page 8] 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.

The char­ter of Be­orredus ex­amined. 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 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, 1wrote 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.

Saxon Charters in the Saxon tongu [...]. 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, 2 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 [Page 9] book of Ramsey-Abby, which having no Charters in it in the Saxon tongue, the Author of it saith, 1that 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.

Feudum not in use in Beorre­dus's days. 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 2of 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 3 Bignonius) postea Feudum dictum est. And in another place he saith, 4 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 5of 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.

Feuda and Beneficia. 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) [Page 10] were not in use among them. Much less Tenure in Capite, Tenure by Knight-service, Tenure in Socage, or Frank-Almoign; tho' the like services were performed to the Saxon Lordships, by their Thanes and Theodens, their Socmen or Husbandmen, and their Beads-men or Clergy-men, by way of contract for the lands received from them; as were after the Conquest to the Norman Lordships by way of Tenure, for lands holden of them.

The Neapolitan and Sicilian Constitutions (which had their original from Princes of Norman lineage) 1do . . . . . the Conquest here in England 2make mention of tenens, tenere, tenementum and tenere de Rege in Capite; but whether the Normans carried these terms into Italy, when they Conquer'd Naples about the year 1031. 3or brought them from thence into Normandy, I cannot determine. Certain it is, that from the Normans they came to us in England; for being not met with before in any authentick Author, we presently after the Conquest begin to hear of them, even about the third or fourth year of the Conqueror's reign, as appeareth 4by his Charter of E­mendationes Legum in the Red book of the Exchequer, f. 162. b. and in Lam­bard's Archaionomia.

Of Tenures in Capite, more particularly.

No Te­nures in Capite a­mong the Saxons. TOuching Tenures therefore in Capite, I think I may boldly say, that here were none in England in the Saxons time, after the manner now in use among us.

First, For that their Feodal Lands (as we have shewed) were not descendible before the Conquest. For tho' there were hla [...]ord and ðane a­mongst the Saxons, that is, Lord and Thane, or Servitour, whom beyond the Seas they called Seigneur & Vassall, alias Vassallum, Dominum & Clientem, while their feuds were arbitrable or but for years or life; yet grew not the words of tenure into use, till that Feuds became descendable to posterities, and thereby obliged the whole succession of heirs to depend and hold upon their Capital Lords by the services imposed at the creation of that Feud.

Secondly, The word in Capite is like a Relative in Logick; which being a supreme degree of it self, implieth some other degrees to be under it, as Tenant in medio or Tenant in imo, or both, viz. Tenant in Capite, Tenant in menalty, and Tenant Paravale, or at least Tenant in Capite and Tenant Paravale, which infe­riour Tenants could not be in the Saxons time, for that the granting of Feuds in perpetuity (out of which the under-Tenancies must be deduced) was (as I have said) not yet in use.

Tenure in Capite of two sorts. Thirdly, to hold in Capite is of two sorts, The one general, which is of the King, as Caput regni & caput generalissimum omnium Feodorum, the fountain whence all feuds and tenures have their main original. The other special or subaltern, which is of a particular subject, as Caput feudi or terrae illius, so called because he was the first that created and granted that feud or land in that manner of tenure, wherein it standeth, and is therefore at this day so to be understood by the ordinary words (in our Deeds) of tenendum de Capitalibus Dominis feodi illius, &c. signifying that the lands so granted (since the statute of Quia Emptores terrarum) must now be holden mediately or im­mediately of him or his heirs or assigns, that was Caput Feodi, the first that created or granted that Feud in that tenure, who thereupon was called Ca­pitalis [Page 11] Dominus & Caput terrae illius; among the Feudists Capitanus feudi illius▪ And the Grantee and his heirs were said to be Tenants in Capite, because they held immediately of him that first granted that feud or land in that manner. Hereupon David I. King of Scots and Earl of Huntingdon here in England, was in right of his Earldom (in the time of King Henry I.) said to be Capud terrae de Crancfeld & Craule post regem Angliae 1. And Roger de Molbray about the same time or shortly after, made a grant in these words: Roger de Mol­bray omnibus hominibus & fidelibus suis Normannis & Anglis salutem. Sciatis quod ego concessi Roberto de Ardenna Clerico amico meo totum nemus de Be­dericheslea cum omnibus antiquis libertatibus & consuetudinibus ejusdem nemoris ad tenendum de me in Capite & haeredibus meis ita libere & quiete, &c. sicut ego un­quam, &c. The Deed is without date; but note that the direction of it is Omnibus hominibus fidelibus suis Normannis & Anglis, which implieth that it was made before Henry II's time: for he being of Anjou in France and bringing in French-men with him, altered then very properly the directions of Charters into Hominibus & fidelibus suis Francis & Anglis. Yet I find the same direction, tho' more improperly, to be some time used under the Norman Kings. Qu.

So likewise (as before) W. Marshall the great Earl of Pembrock, in a Char­ter of his, useth these words about the beginning of Henry III's time (as I take it:) Nisi fortè forinseca tenementa tenueris de me (in) Capite. And 2 Mat. Paris in An. 1250. making mention of one G. a Knight, saith, that Rex me­moratus (Hen. III.) cuidam militi tenenti de Ecclesia S. Albani in Capite, &c. wa­rennam concessit: where the words tenenti de Ecclesia S. Albani in Capite, do signifie, that some Abbat of the Church of St. Alban first created and grant­ed that Feud.

Having thus in general manner prepared my way to the ensuing discourse, I shall now (God willing) by the patience of them whom it most concern­eth, examine such particular assertions, as are produced in the Report, ei­ther to prove our Tenures and Feuds with their dependancies, to have been in use among the Saxons, or to disprove what I have affirmed in my Glossary, or in the Chapters here precedent, and will first shew therein as followeth.

What degrees and distinction of persons were among the Saxons, and of what condition their lands were.

Distincti­on of per­sons a­mong the Saxons. FOr the better understanding of our discourse, it is necessary that we should shew what degrees and distinctions of persons were among the Saxons, and of what condition their lands were. Touching their persons, they are by themselves divided in this manner, Eorle and Ceorl and Ðegn and Ðeoden. In Latin Comes and Villanus, Tainus [unus] & alius, singuli pro modo suo. That is to say, the Earl and the Husbandman, the Thane of the greater sort called the King's Thane, and the Thane of the lesser sort called the Theoden or Ʋnder-thane. More degrees the Saxons had not in their Laity, and among these must all the tenures lye that were in use with them. As for their bond-men (whom they called Theowes and Esnes) they were not counted members of that Common-wealth, but parcels of their Master's goods and substance.

[Page 12] Lands a­mong the Saxons. Bocland. Touching lands among the Saxons they were of two sorts, Bocland and Folcland. Bocland signifieth terram codicillarem or librariam, Charter-lands: for the Saxons called a Deed or Charter an bec, i. e. librum, a book; and this properly was their terra haereditaria: for it commonly carried with it the absolute inheritance and propriety of the Land, and was therefore pre­served in writing, and possess'd by the Thanes and Nobler sort, as proe­dium nobile, liberum & immune a servitiis vulgaribus & servilibus. In which re­spect the Thanes themselves were also called liberales, as appeareth 1by Ca­nute's Forest-laws (Art. 1. 3. & seqq.) a name not well agreeing with Feodal servitudes. But it seemeth by divers Abby-books, that some Estates for life, which we call Frank tenements, were also put in writing, especially a­mong the latter Saxons. Yet were not these accounted bocland; for they were laden commonly with many feodal and ministerial services, whereas bocland (as I said) was free from all services not holden of any Lord, the very same that Allodium; descendable (according to the common course of Nations and of Nature) unto all the sons, and therefore called Gavelkind, not restrain'd to the eldest son (as feodal lands were not at first) but de­visable also by will, and thereupon called Terrae testamentales, as the Thane that possessed them was said to be testamento dignus.

Folcland. 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 Inland.into two sorts; i. e. into Inland and Outland. 2The 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. 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 3speaking 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 4.

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.

Of Earls among our Saxons.

Earl no title of dignity anciently. 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 1to 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 2) 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.

No Earl­doms he­reditary. 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.

Earldoms in France. Loyseau 3and 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 [Page 14] 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 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 Thane­lands.

Of Ceorls; and that they were ordinarily but as Tenants at will, or having lands held not by Knight-service.

Ceorls. 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 [Page 15] 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 1laws 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.

Ceorls. 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, 2saith, Plebs pene servorum habebatur loco: That their common people were in a manner bondmen. And Tacitus to the same pur­pose, 3 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 4in what manner he should leave the land when he departed from it to another place. And the Writ of Waste in Fitz-Herbert 5seemeth 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 6, 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 7, 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.

Earls ca­pable of Knight's-Fees. 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.

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.

Thane, what. A Thane was (in like manner as the Earl) not properly a title of dignity, but of service: so called in the Saxon of [...]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.

Th [...] qua­lity of Thanes. Buchanan 1describing 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 ꝧ 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 2conceiveth 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 [Page 17] 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, 1 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 Sceorp, vestitus, apparatus Somn...... 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 The three services upon LandsExpedition, 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 2.) 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 every 3eight hides or plough-land through the whole Kingdom, shall find a man with a Crosset and Helmet to the Naval Expedition. And every three hundred and ten plough-lands, an ordinary ship. For these purposes, Triremem.was the whole Land formerly divided, either by Alfred the great or some other precedent King, into 243600. hydes or plough-lands, and according to this division were the military and other charges of the Kingdom impos'd [Page 18] and proportion'd, without ever any mention of Tenures in [...]ite or by Knight-service. Hence it rose that the Saxon Kings in granting o [...] lands, liberties, and priviledges unto Ecclesiastical persons and others, were usually so care­ful in reserving Expedition, Burghbote and Brigbote, as you may see in the Char­ters of King Withred 1, Ina 2, Aethelbald 3, Aethelwulph 4, Edgar 5, &c. in the Britain Councils, as also in the Charters here following, and in a multitude of others elsewhere besides. Neither did this Military Expedition otherwise at that time bind the Saxons to a Tenure in capite or Knight-service, then it doth us at this day in the Naval Expedition lately now reviv'd.

[...] not subject to [...] For better manifestation that Thanelands were subject to no feudal ser­vice, consider, I pray you, the words of the Saxon passage before mention'd, where it is said that a Thane must have three hydes at least of his agenes lande, i. e. of his own land, not terrae emphiteuticariae, or precariae, not usu-fructuariae, or feodatariae, but as a Latin copy hath it terrae suae propriae, where the word propriae carrieth another sense than is ordinarily conceiv'd, as to signifie in this place, land wherein no other man hath any interest by feodal superio­rity or dominion, but whereof himself hath meram proprietatem, the sole and absolute propriety; even the same Alodium that is spoken of in the Re­port 6, and which no man hath or can have now at this day, but the King's land holden of no man in the feodal sense, (for the phrase of tenure was not then in use amongst the Saxons) nor ty'd any man to do any feodal service. Another old Latin MS. therefore reciteth the same Saxon passage in these words, Si villanus (so they at that time call'd a Husbandman) ita crevisset sua probitate, quod pleniter haberet quinque hidas de suo proprio alodio, &c. dignus erat honore Liberalitatis, quod Angli dicunt Ðanescipes surðe: si autem liberalis homo, 1. Ðegen [Thanus] ita profecisset ut Regi servisset, & vice sua equitaret in Missatico Regis, hic talis si haberet alium [Thanum] sub se, qui ad expeditionem Regis quinque hidas teneret & in Aula Regis domino suo servisset, &c. Here I must say with Cujacius 7, speaking of the Author of the second Book of Feuds: Proprietatem [alias] vocat quod hic Alodium: Noting thereby that Proprieta [...] and Alodium are synonima, signifying land free from all feodal ser­vice and holden of no body. Yet in that sense Alodium is here said to be Terra ad expeditionem Regis, land oblig'd to the warfare of the King.

I must note also by the way, that he that thus translated the Saxon pas­sage by the words, qui ad expeditionem Regis quinque hidas teneret, follow'd the manner which before we spake of, in rendring Saxon customs by Norman phrases. The Reader perhaps will here understand teneret in the feodal sense, for to hold of his Lord, whereas in the Saxon book the words are no other­wise than gif he he [...]de, i. e. if he had five hydes of land, so that teneret here is no otherwise to be taken than for possideret.

To return to our purpose. Thaneland might no doubt be tyed to do Mili­tary service or Knight-service, and yet not holden in capite or by Knight-service; for it is one thing to hold by Knight-service, and another to be tyed to do it. No man holdeth, that hath not tenementum or tenementale quiddam: But a man might be tyed to do this military expedition for his personal estate (tho' he had no land) or for his very person it self, as appeareth by the laws of King Ina, Cap. 52. where it is said gif se siðcundman, &c. If the Sithcundman having land forbeareth to go the Expedition, he shall forfeit his land and 120s. and if he have no land yet he shall forfeit 60s. and an Husbandman (who if he had land was but Tenant in Socage according to our Law) 30s. It appeareth also by many Charters of the Saxon Kings that Thane lands were not feodal, and that the military Expedition mde no Tenure by Knight-service. Give me leave therefore to produce some of them, that you may see thereby the use of those times, and what the Kings themselves conceiv'd therein.

Charters of Thane-lands granted by Saxon Kings, not only without mention of Tenure or Feodal service, but with all Immunity, except Expedition, &c.

Eadwigus EGO Eadwigh Monarchiam totius Britanniae Insulae cum superno juvamine obtinens, cuidam meo fideli Ministro, vocitato nomine Aelfwine, duas mansas & dimidiam tribuo perenniter illic ubi antiquorum hominum relatu nominatur at Schylfhinghatune, habeat quam diu vivat, & post cui voluerit impertiat, cum his rebus quae sibi rite pertinent tam in magnis quam in minimis. Sit haec donatio im­munis a servitute mundana, excepto illo labore, qui communis omni populo videtur esse (not naming Expeditione, &c. but concluding) Si quis augeat, augeatur. Si quis minuat, careat praemio aeterno, &c. So that here he was freed a servitute mundana both great and small, that was incident or inherent to the land by way of Tenure, and yet he was chargeable to military Expedition, and to the repairing of Bridges, Castles, Burroughs, and Fortifications, but that not other­wise than as all the land of the Kingdom was charg'd, (as before we have shew'd).

Edgarus. Regnante in perpetuum Domino nostro, &c. Ego Eadgarus Rex Anglorum, cae­terarumque gentium in circuitu persistentium gubernator & rector, cuidam fideli meo Ministro vocato nomine Alur. modicam muniminis mei partem Terrae, i. e. in Dor­set. & tres perticas in illo loco, ubi Anglica appellatione dicitur at Lonk, ut ha­beat ac possideat quamdiu vivat, & post se unum haeredem, quicunque sibi placuerit, derelinquat. Sit hoc praedictum rus liberum ab omni malorum obstaculo cum omnibus ad rus rite pertinentibus, campis, pascuis, pratis, sylvis; Excepto communi labore, Expeditione, pontis & arcis constructione. Si quis vero hominum hanc meam Donationem cum stultitiae temeritate jactando infringere tentaverit, sit ipse gravibus per colla depressis catenis inter flamivomes tetrorum doemonum catervas, nisi prius ad satisfactionem emendare voluerit. Istis terminis haec tellus ambita videtur: Ðis is þe landgemark at Lonk, &c. Haec charta scripta est Anno Dominicae Incarnationis, 958.

Ethelre­dus. 1Mundi denique status Christi moderatoris disponente, &c. Ego Ethelredus totius Albionis Basileus, cuidam mihi obsequentium Aethelwoldo vocitatione, pro ejus placabili Obsequio quandam terrae particulam, i. e. decem manentia in loco quem coloni Maningforde appellant in perpetuam concedo haereditatem, quatenus ille bene perfruatur ac prospere possideat quamdiu presenti fruitur vita, & post vitae suae ter­minum cuicunque sibi placuerit haeredi derelinquat. Sit autem praesata terra liber­rima ab omni munduali obstaculo, cum omnibus ad eam pertinentibus in campis & pascuis pratisque ac cursibus aquarum, tribus tantummodo causis exceptis, i. e. Expe­ditione, pontis arcisve restauratione. Si quis autem hanc donationem pervertere studuerit, perpetuae maledictionis incurrat reatum, & gehennae aeternum sustineat in­cendium nisi mortis ante exitum hanc praesumptionem emendare curaverit. Istis ter­minis ambitur praefata tellus Ærst of eastreƿeardan, &c.

So King Ethelred in the Charter to his Thane Sealwyne, granteth five cas­satos in Readdn, cum omnibus, &c. cuicunque sibi libuerit cleronomo direlinquat haereditate, &c. Sit autem istud praefatum rus liberrimum ab omni mundali obsta­culo in magnis ac modicis, campis, pascuis, pratis; tribus tantummodo rationabiliter rebus exceptis quae 2usuali ritu observantur, i. e. cum glomerata sibi expeditioni com­pulerit [Page 20] populari commilitonum confligere castra, atque cum sua petivit pontis titu­bantia muniri vada: ac cum concinni turma urbium indigent muniri stabiliter septa, &c. Dat. anno Dominicae incarnat. 1014. Indict. 12.

[...] 1In nomine Dei almi & agiae Sophiae, &c. Idcirco ego Cnute Rex, Anglorum gubernator & rector, quandam ruris portionem, decem & septem viz. terrae mansas illo in loco ubi jamdudum solicolae illius regionis nomen imposuerunt at Abbodes­bury meo fideli Ministro, quem notis affines Orc appellare solent, in perpetuam con­firmo haereditatem quatenus ille bene perfruatur ac perpetualiter possideat quamdiu Deus per suam ineffabilem misericordiam vitam illi & vitalem spiritum concedere voluerit, deinde namque sibi succedenti cuicunque voluerit cleronomi jure haeredi­tario derelinquat, ceu supra diximus in aeternam haereditatem. Maneat igitur hoc nostrum donum immobile aeterna libertate jocundum cum universis quae ad eundem locum pertinere dinoscuntur tam in magnis quam in modicis rebus, in campis, pas­cuis, pratis, rivulis, silvis, aquarumque cursibus. Excepto communi labore quod omni­bus liquide patet, viz. Expeditione, pontis constructione, arcisve munitione. Si quis autem, &c.

Edward Confess. And King Edward the Confessor granting duas mansas & dimidiam in Wude­ton, &c. to Thola (widow of the foresaid Orc, whom in a Saxon Charter he calleth his Man, that is his Thane) saith thus: In aeternam haereditatem concedo quatenus illa habeat & perpetualiter possideat hanc meam regalem donationem quam­diu vivat, & post obitum suum cuicunque voluerit haeredi relinquat. Sit autem prae­fatum rus liberum ab omni seculari gravedine tam in magnis quam in modicis re­bus, in campis, pascuis, pratis, silvis, aquarumque decursibus; tribus exceptis quae omnibus hominibus communia sunt, viz. Expeditione, pontis, arcisve re­stauratione.

After all these, I will yet add one other of King Eadgar's, having some­what of note above the rest, as anon we shall observe. It was made to the new Monastery of Hide near Winchester in these words.

Edgar. 2Annuente altitoni moderatoris imperio, &c. Ego Edgar totius Britanniae ba­sileus quasdam villas ut nominantur, Dunketone habens quinque hidas terrae & Ec­clesiam, Sueyse cum 28. hydis terrae, &c. Concedo in puram & perpetuam eleemo­synam novae Wintoniensi Ecclesiae beato Petro Apostolorum principi dicatae, &c. cum omnibus utensilibus, pratis, viz. pascuis, rivulis, aeterna largita sint haeredi­tate, &c. Sint autem praedictae villae, rus, mansiones, terrae, rivuli, omni terrenae servitutis jugo liberae imperpetuum, tribus exceptis, Rata viz. Expeditione, pontis arcisve restauratione. Si quis autem hanc nostram donationem in aliud quam constituimus transferre voluerit, privatus consortio Sanctae Dei Ecclesiae, aeter­nis baratri incendiis, &c. puniatur, &c.

Whatsoever the phrase be in the Saxon original, (for I take this to be a trans­lation of the Norman time) it here maketh the lands to be given in Franck­almoign, but without mention of Tenendum, and yet sheweth that they were tyed to Expedition, &c. Yea, and calleth it notwithstanding puram Eleemo­synam, whereas tho' in libera Eleemosyna a rent in old deeds hath sometime been reserv'd, yet can it not be called pura, if any rent or service at all were reserved to the Donor.

I have recited these Charters the more at large for that they apparently discover by many reasons (which we shall set forth in the next Chapter) that the Thanes possess'd not their Thane-lands either by any feodal service or by way of Tenure.

Observations upon the precedent Charters, shewing that the Thane-lands or Expedition were not feodal or did lye in Tenure.

THese Charters present unto us the general manner of granting and possessing of Thane-land among the Saxons during the time of their Mo­narchy, 'till the very coming of the Normans. And there is to be observed in them (as in other before mention'd) what hereafter followeth.

Thane has no direct relation to war. First, That the word Thane which is here and usually interpreted Mini­ster, (that is an officer or servant, of ðenian servire) noteth nothing belong­ing properly to the war, and is not therefore to be understood as Bracton fancieth the word Barones to be quasi robur belli, or to import any matter ei­ther of Feodal service or of Tenure.

No men­tion of te­nere, &c. Secondly, That (as we have formerly observed upon other Charters) so there is not in any of these now produced, one word either of Tenure or of Feodal signification, which presently after the Conquest became innumerable, as brought in by the Conquerour. Yet well may it be, that Edward the Confessor (having his education in Normandy) might (as travellers use to do) bring some Norman words and manners into England.

What us'd instead of Tenere. Thirdly, That instead of tenere and tenendum (by which the Norman feu­dists implied a Clientary if not servile dependance, that the Tenant hath up­on the Lord) the Saxons used habeat, possideat, fruatur, or perfruatur (and else­where gaudeat) words of freedom and immunity. So likewise for tenementa (signifying things holden of a superior proprietary) they used mansas, ma­nentia, and mansiones à manendo, (as places of abode) or casatas à casa, for a dwelling-house, otherwise call'd hyda, quasi tectum à tegendo, including 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.

The occa­sion of granting Thane-lands. 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.

Thane-lands alie­nated. 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.

Thane-lands de­vised by Will. 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 [Page 22] 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 b [...] the words of King Edward the Con­fessor in a Charter to Thola, where he saith, Possideat hanc meam regiam do­na [...]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 [...]o [...]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 Than [...]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.

[...] g [...]nted to Women. 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.

[...] upon Thane-lands but what was expressed. 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.

Expediti­on, repair­ing of [...] 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 1did give the site of that Monastery, with the appendancies, &c. libera & soluta ab omni onere seculari in perpetuam el [...]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 [Page 23] 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 1, 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.

More touching the freedom of Thane-land out of Doomsday.

Thane-lands dis­posed of at the plea­sure of the owner. 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.

Thane-land charg'd with a rent. 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.

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 1telleth us, ‘It is most manifest that they were frequent and 2common in the times of the Saxons. We will now follow the direction of our Saviour 3, and see if by the fruit we can find the tree. The Report saith 4, (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 5sup­plyeth shortly after to be (7) Homage. (8) Fealty. (9) Escuage: Adding again Relief and Wardship, instead whereof I out of a third passage 6do place (10) Escheats. And it concludeth 7that ‘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.

No profit of Land by Wardship in the Saxons time.

Profits by Wardship. 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 Chap. 8.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.

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 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.

The name Wardship. 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.

Mr. Selden's judge­ment. 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 [Page 26] be thus. 1 ‘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 Fort [...]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, 2These 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.

Lambards opinion. 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 3words 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 4 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.

Magna Charta. The third assertion is, that in the customs of Kent, (5 which are in Magna Charta of Tottil's Edition, and in Lambard's Perambulation) there is a rule [Page 27] 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 2 [...]. 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 1, 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 2. 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 text of customs. And to clear the doubt in the elder Edition 3publish'd by Tot­till 12. June 1556. no such thing is mention'd; but if it were, there are such other differences in their copies as both their authorities may be que­stion'd, and I in the mean time well delivered from this objection. Let us see what followeth.

Wardship in Scot­land. Fourthly, For the antiquity of Wardships in England and Scotland. "See also (says the Report 4) Hector Boet. lib. 2. Buchanan rerum Scot. lib. 6. and the laws of Malcome II. which prove the antiquity of Wardships in Scotland and in England before the Conquest 5. For in those times it is probable the laws of both Nations did not much differ; as for the times after, it appears they did not, by comparing their Regiam Majestatem with our Glanvil. Neither is the bare conjecture of Sir Henry Spelman sufficient to take away the force of those laws, Vid. Spelman's Glossary verbo Feudum. Upon all this (saith the Report) they (the Justices of Ireland) did conclude and proceed to sentence." With the sentence (as a sacred thing) I will not meddle. But as touching that part of this argument which—In nostros fabricata est machina muros—I'm tyed either to answer or to submit. For Hector Boethius therefore, I confess Hector Boethius.the place to be truly alledg'd, (and that hitherto hath seldom happened) but for the credit of that Author I wish Leland were alive to deliver the cen­sure he hath left upon him with his own mouth: I forbear it. True it is, he relateth that Malcolm II. gave all his lands well nigh unto his Nobility in reward of their service, and that they in thankfulness to support his dignity, regranted unto him, Vardam, Desponsationem, & releviam al. relevatam, Wardship, and Marriage of their Heirs within age, and Relief of those of full age. The Paragraph there is long, but to the effect we spoke of. It is also true that Buchanan doth report the like, and since him Cameraris, and a little before them all Johannes Major; but all their harping is from the sound of one string, which in the Report is not left unstrain'd, i. e. the laws of Malcolme before mention'd, where it is said, that ad montem placiti in Villa de Scona omnes Barones concesserunt sibi Wardam, & Releviam de Haerede cujuscunque Baronis defuncti ad sustentationem Domini Regis. Which, because they concern a noble Kindom, and have been receiv'd as authentical by an ancient Parliament, I will not presume to contradict it. But I humbly offer to the consideration of the Learned of that Kingdom, and to those of ours and theirs that are conversant in Antiquities, these particulars following.

[Page 28] Th [...] au­th [...]ri [...]y of [...]. First, It being agreed (which the Scots affirm) that Malcolm II. began his reign in the year 1004. (i. e. above 60. years before the Normans Conquer'd England) how it cometh to pass that Malcolm useth so many Norman words in his Scottish Laws, and whether those words be found in any other monu­ment there before: for in England it was not so.

Secondly, Whether their Kings then had not only a Seal but magnum sigil­lum in the custody of the Chancellor, and set-fees appointed for the use of it; for in England it was not so, tho▪ Edward the Confessour had a Seal af­ter Malcolm's time.

Thirdly, Whether they had brevia clausa in cera, and other ordinary in­struments seal'd cum magno sigillo, and fees appointed for it; for in England it was not so.

Fourthly, Whether they had solemn presentations to Churches and Hospi­tals under Seals in that manner; for this was long before the Council of Lateran.

Fifthly, Whether they had then the names of Barons, Seneschallus, Con­stabularius, Mareschallus, (not in use in England in the time of the Confes­sour) as appeareth, for the two latter, by the Appendix to the Confessours laws 1; and for their Seneschallus called their Steward, Buchanan 2says he was brought in by Malcolm III. into Scotland.

Sixthly, Whether the Norman Officers of Justiciarius, Vicecomes, Coronator, Ballivus, &c. were then in use by any other proof than by or from these laws; & sic de caeteris.

Many other things I pretermit, and take no exception to the frequent mention of Pounds and Shillings, tho' I know they were scarce with them in Scotland; as not abundant then in England, but paid in Truck and Cattel. The a­greement of the En­glish and Scotch Laws.But I admit that which the Report saith, that in those times it is probable the laws of both Nations did not much differ. As for the times after, it ap­peareth they did not, by comparing their Regiam Majestatem with our Glan­vil. They run much (I confess) paribus vestigiis, and oftentimes totidem verbis, iisdem paragraphis. Whether of them leads or follows the other, I dare not define, and am loath to dispute. The Preface to the Regia Majestas sheweth it to be written at the command of King David; whom Skeneus in his An­notations calleth the first, and saith, he began to reign Anno 1124. i. e. 24. or 25. of Hen. I. And 'tis certain that our Glanvil was not written till the time of Hen. II. who began not to reign till 1154. so that if this be true, it must needs follow that we took a great part of the modell of our laws, or at least the expression of them, from the Scots, (which our Ancestors never yet acknowledg'd). It may perhaps fall out (upon better examination) that David I. may be mistaken for David II. But for the part of Malcolm II's laws, which speak of Wardship, Marriage and Relief in Scotland at that time, to have risen from their own Nobility; Buchanan himself recedeth from that opinion, and concludes, Hun [...] morem ab Anglis & Danis potius acceptum credo: quod in tota Anglia & parte Normanniae adhuc perseveret. And Demster himself, their greatest Antiquary, ingeniously consesseth, that there were no Barons in Scotland till Malcolm III. created them. And he might well take his precedent from the Conquerour, for he liv'd all the time of the Conque­rour, and about seven years after: so that if there were no Barons in Scot­land in the time of Malcolm II. as Demster affirmeth, or the precedent taken out of England for Wardship, as Buchanan believeth: then could not this law be made in Malcolm II's. time, but seemeth rather (by both their opinions) to be ascrib'd to Malcolm III. and that the error hath risen (as easily it may) in writing II. for III. But in the mean time all this makes no proof a­gainst me.

No Marriage of Wards.

Marriage of Wards. AS for Marriage, it is here and in some other places mention'd by the Report, but not a word any where to prove that it belonged to the Lord in the Saxon time. I will help them with what I meet in the old MS. Book of Ramsey, Sect. 120. where it is said, that one Edwine son of Othulf gave five hides of land to Archbishop Odo, Pro eo quod Regem Edredum in­flexerat, ut ei liceret filiam cujusdam viri Ʋlfi 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 2 Kings 2. 21.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 mæden, &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.

When marriages came in. 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.

[Page 30] [...] marriage. 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 1) 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 2, 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.

No Livery, no Primer Seisin.

Praerog. Reg. cap. 3 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.

That Reliefs (whereon the Report most relyeth) were not in use among the Saxons; nor like their Heriots.

No Reliefs among the Sax­ons. 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 1addeth 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. Med­mena mediocris.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: 'tis 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 75th. Chap. of the second part of his Laws in these words, & se man ðe æt ðam sy [...]dung toforan his hla [...]ord [...]ealle, sy hit innan lande, sy hit of lande. [Page 32] 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. Ʋt 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 Relevia­mentum. 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.

Difference between Heriots and Reliefs.

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 1; the Relief for the Tenant that succeeded and out of his purse. The Heriot whether the [Page 33] 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. 1 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 2saith, 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 3, 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.

No Fines for Licence of Alienation.

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 'tis 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.

Folcland. 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 [Page 34] 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 1that 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 Ʋrke 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▪

No Feodal Homage among the Saxons.

Feodal homage. 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 2expound 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 two-fold. 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 [Page 35] 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. Neither Bocland nor Folc­land sub­ject to ho­mage.

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 1biddeth us note, that none shall do homage but such as have an estate in fee simple or fee taile, &c. ‘For (saith he) 'tis 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 2. 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.

What manner of Fealty among the Saxons.

All oath [...] not fealty. 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 3saith, 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.

No Fealty but for a Fee. 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 [Page 36] 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.

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. 1 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 of a Fine, as was common in all cases of Feodal Tenures.

Summons in the Empire. This hath some shew of our Escuage, and might well have taken that name from the manner of summons used in the Empire; which was by erect­ing a post or pillar, and hanging a Shield at the top thereof, an Herald proclaiming that all who held in this manner should at such a day attend the Emperour in his voyage to Rome, for taking the Crown of Italy or King of Romans; which the Ligurine Poet thus expresseth, 2

[Page 37]
—Ligno suspenditur alte
Erecto Clypeus: tunc Praeco regius omnes
Convocat a dominis feudalia jura tenentes, &c.

as we have shew'd in our Glossary verbo Feudum. He useth Clypeus for a Shield, instead of Scutum; and from this shield I say it might well be called Scutagium, as also from the service performed in it cum hasta & scuto. Yet this summons was not called Schiltbannum but Heribannum, that is indictio exercitus, not indictio s [...]uti.

But to keep nearer the matter. First, our Saxons neither used the name nor the rules of the Norman Escuage; for they called their going to war up­on legal summons, firdfare and utfare, in Latin Expeditionem and Profectio­nem. Secondly, they were not tyed to any definite time of abode, as for fourty days or more or less, but as the law saith 1, sƿa a ðon ðearf sy for gemene [...]re neode, so as need shall require for common necessity.

Thirdly, the mulct or forfeiture that the Tenant in Escuage incurred for not going forth upon that summons, was uncertain among the Normans and us, 'till the Parliament assign'd it; but among the Saxons he that of­fended in Ferdwite, that is, in not going forth in the Expedition, was cer­tainly fin'd at 120 2. Fourthly, whereas every Lord among us had the fine assess'd by Parliament of his own Tenant for the Lands holden of himself; the King among the Saxons had the fine aforesaid of every delinquent, whose Tenant or follower soever he were, by all the Laws of the king­dom, that is to say, by the West-Saxon Law, by the Mercian, and by the Dane Law; tho' otherwise they differ'd 3in their Heriots, and many parti­cular customs. So that to talk of Escuage among the Saxons, is without all colour or probability as I take it.

No Feodal Escheate of Hereditary Lands among the Saxons.

Escheats. EScheats (of Eschoeir in French) signifieth things coming accidentally, as on the by or by chance. The F [...]odists therefore call them Caduca (a cadendo) and excadentias; the black book of the Exchequer Escaetas, ex­cidentia and excadentia: but among our Saxons I find no word to express them either properly or paraphrastically. In our Law they be of two sorts, Regal Escheats and Feodal. Regal are those obventions and forfeitures which belong generally to Kings by the ancient right of their Crowns and supreme dignity. Thus King David gave the lands of Mephibosheth accused of Trea­son, unto Ziba (tho' too hastily.) Feodal are those which accrue to every Feodal Lord as well as to the King, by reason of his Seignory, and of all the fruits of Tenure none so great as this (if we may call it a fruit) where the feud or tree it self resulteth back unto the Lord. Let us see therefore if we find any of these Feodal Escheats among the Saxons.

Canutus's Law exa­min'd. There is a shrewd text (I confess) in Canutus his Laws. Qui fugiet à domino suo vel socio pro timiditate in expeditione navali vel terrestri, perdat omne quod suum est, & suam ipsius vitam, & manus mittat dominus ad terram quam ei dede­rat, & si terram haereditariam habeat, ipsa in manum Regis transeat. Here is the appearance of a Tenure, of a Feud, of a Forfeiture, and of an Escheat. The Tenure lyeth between the Lord and his fugitive Vassal, whom the Sax­ons and Germans called his Man, we his Tenant. The Feud in the Land, [Page 38] quam d [...]m [...]nus [...]i dederat. The forfeiture, in fugiendo, in the Vassals running away. And the Es [...]heat, in the Lord's seizing of the land: manus mittat domi­nus in terram quam ei dederat, Let the Lord take back the estate which he gave in the temporary feud: But for the hereditary land, he saith, transeat (non redeat) in manum Regis. All this is nothing in our case; for I declared in the beginning that our question was fix'd upon such feuds as the Law of England taketh notice of at this day, that is, of feuds after they were be­come hereditary and perpetual, not of those mention'd by Gerardus Niger, which were temporary as at will of the Lord, or for years, or for life, like them here intended by Canutus. This very Law observeth the difference, and discovereth also that feuds were not hereditary in his time, and therefore giveth the feodal land, being but a temporary estate, back unto the Lord (in whom the Reversion was by inheritance) as a feodal right, but giveth the he­reditary Lands unto the King as a Regal Escheat; for that there was no mean or intervenient Lord to claim them by any feodal tenure, for that the here­ditary lands among the Saxons (otherwise called Bocland) were holden of no body, nor subject to any feodal service, (as we have often declared) and could not therefore Escheat unto any feodal Lord. The Kentish custom of the father to the Bough and the son to the Plough, suggesteth as much, and shew­eth also to have been the general use of England, till the Conquerour intro­ducing hereditary feuds, put upon us therewith these greater feodal servitudes of Wardship, Marriage, Escheats, &c. So that the hereditary lands not being feodal in the Saxon's time, nor the feodal lands hereditary; there could then be no feodal Escheats among them. And I take it to be considerable whether the land resumed by the Lord upon his Vassal's running away, be properly an Escheat by the Law of Canutus, or rather a penalty only impos'd in this particular case.

Thaneland and Reveland what: no marks of Tenure but distinctions of Land-holders.

Thane­lands. THere is yet another assertion, rather shewed than proved, 1That the Thani majores or King's Thanes, held by personal service of the King's person by Grand Serjanty or Knights-service in Capite. And the reason fol­lowing is, that the land so held was in those times called Thane-land, as land Reveland.holden in Socage was called Reveland: so frequently in Doomsday 2, Haec terra fuit terra Regis Edwardi Thainland, sed postea conversa est in Reveland; Coke's Instit. §. 117. Thus the Report dischargeth it self upon my Lord Coke, whose words be these, ‘It is to be observ'd that in the book of Doomsday, land holden by Knights-service was called Thainland, and land holden by Socage was called Reveland. I reverence the opinion of that famous Lawyer with admiration, but I suppose he speaketh not this ex tripode juridico. For it is impossible, that it and that which is before deliver'd out of the very Char­ters of the Saxon Kings themselves, should stand together, viz. That their Thanelands should be liberae ab omni seculari gravedine, and yet be subject to that which of all other was most grievous, viz. our Knights-service in Capite. It may be answered, (as the Report 3in another place delivereth positively) ‘That Tenure in Capite cannot be transferred or extinct by release or grant; for it is an incident inseparably annexed to the Crown.’ The answer were [Page 39] good if once they had made it appear that both this Tenure and this Law were in force in the Saxons time. There is nothing shew'd to prove that suggestion, and were it true I should desire no better argument on my be­half than what the place it self bringeth with it. For if Thaneland were converted into Reveland, and that Reveland signify Socage-land, then it is as manifest as the Sun, that Tainland did not signify land holden by Knights-service in Capite; for if it did, then could it not decline into Socage-Tenure, as their own Maxime doth demonstrate.

Coke's cita­tion false If there be a cloud before this Sun, I shall remove it also. My Lord Coke citing this place out of Doomsday, noteth in the margin Here­fords [...]. but delivereth both the title and the text by halfs. The title is Here­ford. Rex. the text thus: Haec terra fuit tempore Edwardi Regis Tainland, sed postea conversa est in Reveland. Et idem dicunt legati Regis quod ipsa terra & cen­sus qui inde exit, furtim aufertur Regi. The very title discovers the Tenure, for if it be Terra Regis, (as the word Rex declareth it) then it is plainly An­cient Demesne, and every Lawyer will tell us, that in ancient Demesne there was no Tenure by Knights-service, but wholly in Socage. So that this cloud now vanisheth into the air, and our Tainland is clearly discovered to be but So­cage. I shall speak more of it afterwards.

Sense of Doomsday. But what construction shall we now find for the words in Doomsday, Tain­land conversa est in Reveland. (Hoc opus, hic labor est.) It is sufficient for me to have quit my self of the objection, they must seek some new interpretation. Yet will I help them what I can in that also: I suppose that the land which is here said to have been Thaneland, T. E. R. and after converted into Tempore Edwardi Regis. Reveland: was such land as being reverted to the King after the death of his Thane, who had it for life, was not since granted out to any by the King, but rested in charge upon the account of the Reve or Bailiff of the Mannour, who (as it seemeth) being in this Lordship of Hereford, like the Reve in Chaucer, a false brother, concealed the land from the Auditor and kept the profit of it to himself; till the Surveiors, who are here called Legati Regis, dis­covered this falsehood and presented to the King, that furtim aufertur Regi, as by the words in the latter part of the paragraph (which my Lord Coke reciteth) appeareth. Besides all this, why should the coming of these lands into the Reve's accompt, alter the nature of the Tenure, seeing all men know that the Reves and Bailiffs of Mannours govern and dispose the lands thereof, as well which are holden by Knights-service as those in Socage.

The French Custuma­ry As for the old French MS. Custumary (which they affirm doth mention Tenures by Knights-service, long before the Saxons even in the time of the Britains;) I doubt not but there may be such a passage in it; for the Law which they ascribe to Edward the Confessour for proving Feuds to be in use in his time, affirmeth also that the Laws, Dignities, Liberties, &c. of the City of London were at that day the same which were in Old Great Troy. But as they in the Report wave the one, so I take them both for Romances, and pass them over as not worth an answer.

Having thus particularly answered every argument, inference and obje­ction, produced in the Report, to prove our Feuds and Form of Tenures to have been in use amongst our Saxons; I shall now conclude that it neither was nor could be so, unless we shall assume that our poor illiterate Saxons (in a corner of the World) were the Authors of the Feodal Law, and gave the precedent thereof to the Germans, Longobards, French, Italians, and the Em­pire. For in none of these was it otherwise extant (till about the end of our Saxon Monarchy;) then by such budds and branches as we formerly have expressed out of Caesar, Tacitus, and some other.

How the Saxons held their Lands, and what obliged them to so many kinds of Services.

IT cometh now in question, how the Saxons held their lands, and what obliged them to that multitude of services which lay upon them both in war and peace.

[...]. As for Tenures, I still say that they had not the name in use among them, yet (like the Jews, the Greeks, the Romans, and other ancient Nations) a multitude of services, whereof some were personal, and some praedial.

Personal [...]. Personal services were those which a man did for his person or personal Estate, either generally to the King and Common-wealth in publick occa­sions, as in the Trinodi necessitate, &c. or particularly to his own Lord upon particular agreement between them, like the Commendati before mentioned, and some ministerial Officers and domestick servants.

Praedial [...]. Praedial service was that which was done after the same manner (to the King or his Lord) for land only; and this was of three sorts, Alodial, Be­neficiary, and Colonical.

Alodial [...]ice. Alodial service was that which the Greater Thanes and other who had Alodial land (otherwise called Bocland, and as I take it Gavelkind and Hereditary land) were tyed to do pro bono publico to the King and Common-wealth, in respect of those Lands; tho' by the Feudal law that kind of land was free from all Tenure and Feodal service. I should not therefore use this solecism to call them services, if the Dialect of our Law afforded me some other fit expres­sion; but the Saxons themselves term'd them Land-rights not services, of which sort were the Trinodis necessitas of Expedition, Burghbote and Brigbote, the guarding of the sea and of the peace, attendance upon the King's sum­mons for his Park or Palace before expressed, and besides them all the Tri­bute of Danegelt, &c.

Beneficia­ry services. Beneficiary services were those, which were done by the midling or lesser Thanes to the King, and the greater Thanes either militarily in war, or mini­sterially in peace, for those portions of Out-land, which being granted to them temporarily (as at will of the Lord or for life or lives) were then called Beneficia, but being extended after to perpetuity, they were named by the Normans Feoda. The Creation, manner, variety, and multitude of them, you shall see in the Charter of Bishop Oswald, by and by ensuing.

Colonical [...]. Colonical services were those which were done by the Ceorls and Socmen, (that is, Husbandmen) to their Lords (the King and Thanes) of all sorts, for some portions also of their Out-lands. These were after called feoda rustica beyond the Seas, with us Socage-lands, and were holden at pleasure of their Lords either by rendring part of the profits thereupon growing or reared, as victuals especially, in Saxon called Feorms, &c. (whereof see the rates in the Laws of King Ina, Chap. 70.) or by doing some works of Husbandry upon the Lord's Inlands now called his Demeans, as Tillage, Carriage, Harvest­works, &c.

Among all these diversities of services, none cometh so near to the nature of Feuds and Tenures, as the Beneficiary do. Let us therefore consider them the more seriously by that notable pattern of them left unto us from Bishop Oswald, who dividing much of the land of his Church of Worcester into those kind of portions, which after the Feodal word then in use he called Beneficia, granted the same unto his Thanes and followers, not by the name of [Page 41] his milites or tenentes, but of his fidos subditos, for the term of three lives (according to the manner which they retain in those parts even to this day) and reserving to his Church and successors not homagium & s [...]rvitium, the material words in Tenure to create Knights-service in the Feodal Law, but the services mentioned in his Charter secundum Conventionem cum eis factam & sponsionem suam, as the very words are there expresly. But hear the Charter or rather Epistle as he himself calleth it, which the King confirmed and a Councell. The Aranga or preamble of it is a thankful acknowledgement of King Edgar's bounty and goodness to him (the Bishop) and his Church; the conclusion (after the manner of those times) a curse and heavy impre­cation against all such as shall spoil or violate the same. Both which being long and nothing to our purpose, I think convenient here to pretermit. The rest is as followeth under the title given it in the Manuscript.

The Charter whereby Oswald Bishop of Worcester dis­posed divers lands of his Church after the Feodal manner of that time, entituled, Indiculum libertatis de Oswaldes-Lawes-Hundred.

DOmino meo charissimo Regi Anglorum Edgaro, ego Oswaldus Wigorniensis Ecclesiae Episcopus, &c. Quare quomodo fidos mihi subditos telluribus quae meae traditae sunt potestati per spatium temporis, trium hominum id est duorum post se haeredum, condonarem, placuit tam mihi quam ipsis fautoribus & consiliariis meis, cum ipsius Domini mei regis licentia & attestatione, ut fratribus meis successoribus scil. Episcopis per Chirographi cautionem apertius enuclearem, ut sciant quid ab eis extorquere juste debeant secundum conventionem cum eis factam, & sponsionem suam; unde & hanc Epistolam ob cautelae causam componere studui, nequis malignae cupi­ditatis instinctu hoc sequenti tempore mutare volens, abjurare a servitio Ecclesiae queat.

Haec itaque conventio cum eis facta est, ipso Domino meo Rege annuente, & sua attestatione munificentae suae largitatem roborante & confirmante, omnibusque ipsius regiminis sapientibus & principibus attestantibus & consentientibus, hoc pacto eis terras Sanctae Ecclesiae sub me tenere concessi: Hoc est ut omnis Equitandi lex ab eis impleatur, quae ad Equites pertinet, & ut pleniter persolvant omnia quae ad jus ipsius Ecclesiae juste competunt, scil. ea quae Anglice dicuntur Ciricsceott & Toll, id est thelonium, & Tacc id est swinseade, & caetera jura Ecclesiae, nisi Episcopus alicui eorum quid pardonare voluerit, seseque quamdiu ipsas terras tenent in man­datis Pontificis humiliter cum omni subjectione perseverare etiam jurejurando af­firment.

Super haec etiam ad omnis industriae Episcopi indigentiam semet ipsos praesto im­pendant, Equos praestent, ipsi Equitent, & ad totum piramiticum opus Ecclesiae calcis atque ad Pontis aedificum ultro inveniantur parati. Sed & Venationis sepem Do­mini Episcopi ultronei ad aedificandum repperiantur, suaque quandocunque Domino Episcopo libuerit Venabula destinent Venatum.

Insuper ad multas alias indigentiae causas quibus opus est Domino Antistiti saepe furnisci, sive ad suum servitium sive ad regale explendum: semper illius Archiducto­ris dominatui & voluntati qui Episcopatui praesidet, propter beneficium quod illis praestitum est, cum omni humilitate & subjectione subditi fiant, secundum ipsius vo­luntatem, & terrarum quas quisque possidet quantitatem.

[Page 42] Decurso autem praefati temporis curriculo, viz. duorum qui post eos qui eas mode possident haeredum vitae spatio, in ipsius Antistitis sit arbitrio, quid inde velit, & quomodo sui velle sit inde ita stet, sive ad suum opus eas retinere si sic sibi utile ju­dicaverit, sive eas alicui diutius praestare, si sic sibi placuerit, velit, ita duntaxat ut semper Ecclesiae servitia pleniter (ut praefati sumus) inde persolvantur. Ast si quid praefatorum delicti praevaricantis causa defuerit jurum; praevaricationis delictum secundum quod Praesulis jus est, emendet: aut illo quo antea potitus est dono & terra careat.

Siquis vero Diabolo instigante, &c.

The im­port of the Charter. The sum of all aforesaid is, that the Bishop's Tenant shall pay and do as followeth.

First, That they shall perform all duties that belong to Horsemen.

That they shall pay all things that are due unto the Church, and perform all other rights that belong to it.

That they shall swear to be in all humble subjection at the command of the Bishop, as long as they shall hold these lands of him.

That as often as the occasion of the Bishops shall so require, they shall pre­sent themselves to be ready for it, and shall both furnish him with Horses and ride themselves.

That of their own accord they shall be ready to perform all the work about the Steeple of that Church, and for the building of Castles and Bridges.

That they shall readily help to fence in the Bishop's Parks, and to furnish him with Hunting weapons, when he goeth a hunting.

That in many other cases when the occasion of the Lord Bishop shall re­quire, whether it be for his own service or for the King's service, they shall in all humbleness and subjection be obedient to the chief Captain or Leader of the Bishoprick, for the Or Fee granted.benefit done unto them, and the quantity of land which every one of them possesseth.

That after the expiration of the three lives, the land shall return again to the Bishoprick.

That if there be any defect in performing the premisses by reason that some shall vary or break the agreement, the Delinquent shall make satis­faction according to the justice of the Bishop, or shall forfeit the land which he had of his gift.

I suppose that this was the common manner of grants and reservations in those times, and that they were not made otherwise than for life or three lives, for so I find them in the Abby-books. And I also suppose that they to whom these lands were granted, were the Thani Episcopi & Thani Ecclesiae, spoken of in Doomsday-book, and that the lands themselves were such as in the same book are usually called Thain-lands, Ecclesiae, Episcopi and Abbatis.

But I see they were laden with many services which the lands of the King's Thane, in respect of his dignity and person, were free from. Therefore when this very Bishop by another Charter granted tres cassatas, three hydes of land in Cungle, cuidam Ministro Regis, to one of the King's Thanes nam'd Alfwold, and to his Mother (if she surviv'd) during their lives: he put no service upon the King's Thane, but saith plena glorietur libertate, excepta ex­peditione rata, Pontis arcisve constructione: the common exception in grants unto the Kings Thanes as before appeareth; and yet the services thereby ex­cepted belonged not either to the Bishop or the King himself, otherwise than pro bono publico and common necessity.

After all this I beat still upon the old string, that here yet is nothing to prove Wardship or Marriage, or (as the law then stood) a Tenure by Knights-service: for we have made it manifest that Expedition and building of Castles and Bridges were no Feodal services nor grew by Tenure. And as for these that were tyed to ride and go up and down with their Lord, Baraterius [Page 43] an old 1Feudist saith, that a Knights fee may be given so ut Vassallus in die­bus Festivis cum uxore Domini ad Ecclesiam vadat, and the feudal law it self inferreth as much, Lib. 2. Tit. 3. But our Bracton speaking of our Law here in England (de Invest. feud.) in his time touching such Tenants, calleth them Rodknights alias Radknights, Lib. 2. Cap. 35. nu. 6. ut siquis debeat equitare cum Domino suo de Manerio in Manerium; and saith not that it is Knight-service, but that it is a Serjantie, and that although such sometimes do Homage, yet the Lord shall not have Ward and Marriage. Admit notwithstanding that it were Knight-service, and that the lands thus holden were Knights Fees during the life of the Tenant, yet where is the Wardship, Marriage and Releif? Who shall undergo these servitudes, since the Tenure and all the services are de­termin'd with the life of the Tenant?

Inducements to the Conclusion.

SEeing then that neither the greater Thanes nor the lesser Thanes among the Saxons were subject to the rules of our Knight-service: upon whom then (if it were in use among them) did it lye? For as touching the Clergy it is said in the Laws of Edw. the Confessor, cap. 11. that the King and the people magis in Ecclesiae confidebant Orationibus quam in Armorum defensionibus. And the Report it self confesseth (pag. 3. in pede) ‘That the possessions of Bishops and Abbots were first made subject to Knight-service in Capite by William the Conqueror in the fourth year of his reign: for their lands were held in the times of the Saxons, In pura & libera eleemosyna, free ab omni servitio seculari, &c.’ Though this be not true in the latter part, (being strictly taken,) for no doubt their lands were subject to the Trinodi necessitati, viz. Expeditioni, pontis arcisque constructioni (as before appeareth,) yet cometh it very fitly to my purpose: for hereby it is evident that if the Trinodis ne­cessitas made no Tenure by Knight-service or in Capite in the Church Lands, then neither did it in the Thane-lands (as before we have shew'd) and then much less in the land of Churles and Husbandmen commonly call'd the Soc­manni; for it is agreed on all hands that their lands were holden no otherwise than by Socage. Therefore if all Kent in the Saxon's time were Gavelkind, then could there be no Tenures by Knight-service in all that County. For Glanvil (Lib. 7. c. 3.) telleth us, ‘That where the inheritance is divideable among the sons, it is Socage: And his reason is, because that where 'tis holden by Knight-service the Primogenitus succedit in toto. This Kentish custom was ab initio the general Law of England, and of all Nations, Jews, Prov. 17. 2 Greeks, Romans, and the rest, and so continueth even till this day, where the Feodal Law hath not altered it; which first happen'd here in England, when the Normans introducing their Feuds settled the whole inheritance of them upon the eldest son, which the ancient Feodal Law it self did not (as we be­fore have noted) till Feuds were grown perpetual. The reason as I take it that begat this alteration, was for that while the Feud did descend in Gavel­kind to the Sons and Nephews of the Feodatorie, the services were suspended till the Lord had chosen which of the Sons he would have for his Tenant, and then it was uncertain whether the party chosen would accept of the Feud or not; for sometimes there might be reasons to refuse it.

[Page 44] To return where I left; it makes to the proof of all this that has been said, and (for conclusion) seems to be unanswerable, that the old inheritance which in the Saxons time belong'd to the Crown, called in Doomsday Terra Regis, and in the Law books Antient Demesne, containing a great part of every County, had not any Lands within it (or within any Mannor thereof) holden by Knight-service. For Fitz-Herbert 1saith, that Nul terres sont antient demesne forsque terres tenus en Socage. And therefore if the Tenant in ancient Demesne will claim to hold of the Lord by Knights-service, it is good cause to remove the Plea, because that no Lands holden of a Mannor which is antient Demesne are holden by other services of the Lord than by Socage: for the Tenants in antient Demesne are call'd Socmanni, that is to say, Tenants del carve, Angl. le plough. Thus far Fitz-Herbert. Now if in the Mannors of the King himself, there were then no Lands holden by Knight-service throughout all England, it will then in all probability follow, that there were none likewise among his Subjects in the Saxons time, and consequently that our Feudal Law was not introduc'd before the Conquest. Mr. Cambden by their own confession is of the same opinion; and Mr. Selden himself, whom they alledge against me, is clearly with me; as before I have shew'd.

If these our three opinions avail nothing, we have yet a fourth to strengthen, great Bracton the most learned in our ancient Laws and Customs, that hath been in this Kingdom; who speaking of Forinsecum servitium as the Genus to these Tenures, saith, Lib. 2. cap. 16. Nu. 7. fol. 36. a. that it was call'd regale servitium, quia spectat ad Dominum Regem, & non ad alium, & secundum quod in Conquestu fuit adinventum. Here Bracton also refers the Invention to the Conquest, but the Report waveth his opinion as well as ours, notwith­standing his great knowledge, and that he liv'd nearer to the Conquest by two third parts of the time than we do.

Black book of the Ex­chequer. Well, there is yet an elder, and one that might see some that liv'd in the Conqueror's time, the Author of the Black-book of the Chequer: who speak­ing of the Saxon Laws and those of the Conqueror saith, Cap. 16. fol. 16. b. Quasdam reprobavit, quasdam autem approbans, illis transmarinas Neustriae (id est Normanniae) leges quae ad regni pacem tuendam efficacissimae videbantur, adjecit. What were those Neustrian Laws or what could they be (in all the books of the Law) for preserving peace, save Military Tenures? And the Exchequer it self, where the cognisance of all these Tenures lyeth, was brought in also by the Conqueror.

But Ingulphus the Abbot of Croyland, liv'd long in the Conqueror's time, and was one of his Domesticks or Familiars, as he termeth himself. And by him it appeareth that the Conqueror not only generally dispossess'd the Saxons and gave their lands to his Normans and others, but chang'd also their manner of conveyance, the form of their Charters, and the course of making Knights, whereupon all the rules of Knight-service have since depended, See his words p. 901. For at that time Miles & per militiam tenens were all one by Glanvils testimony, Lib. 7. ca. 3. p. 49.

But when all fails, I hope they will believe the Conqueror himself, who in a Charter of his Laws and a great Council of the Kingdom, which we now call a Parliament, publish'd by Mr. Lambard, useth these words.

Statuimus & sirmiter praecipimus, ut omnes Comites, & Barones, & Milites, & servientes, & universi liberi homines totius Regni nostri praedicti, habeant & teneant se semper bene in armis, & in Equis, ut decet & oportet. Et quod sint semper prompti & parati ad servitium suum integrum nobis explendum & peragendum, cum semper opus adfuerit, secundum quod nobis debent de feodis & Tenementis suis de jure, facere, & sicut illis statuimus per commune consilium totius regni nostri praedicti, & [Page 45] illis dedimus & concessimus in feodis jure haereditatio. Hoc praeceptum non sit vio­latum ullo modo super forisfacturam plenam.

Here the word statuimus, &c. sheweth that it was the Conqueror's insti­tution, and concessimus in feodis jure haereditario, implyeth that Feuds were not hereditary before this grant. But there may lye the same objection against it which my self made against the like in Edw. the Confessor's Laws, that it is in a differing letter from the rest of the Text, and not found in the Copy left unto us by Roger Hoveden. I acknowledge it, but I see that here every thing agreeth with the Manners, Laws, Time, and Idiom of the Conqueror. And I conceive that it is fallen out as it did of old in the Councils of Nice and Sardis, and many other too, several Councils to be joyn'd together. For Hoveden mentioneth his Copy to be Decretum in civitate Claudia, that is Gloster: but Lambard his, to be in civitate Londra, London: so that they seem two several Constitutions made at several times and places, and here put together into one. Howsoever it be, 'tis very observable; for it discovereth that which elsewhere we meet not with so perspicuously related, That the great dignities of Earls and Barons or Ministerial Thanes, which before were arbitrable or but for life, and those also of the lesser sort (which enjoy'd the Knights Fees no otherwise than in the same manner) were either now erected with us or made hereditary, according to the testimony of the Feodal Law before recited. 'Till now therefore there could no Wardship, Marriage, Re­leif, or other Feodal servitudes (thereupon depending) be amongst us; nor could the word feodum be taken for haereditas, the one being formerly con­trary to the other. For Cujacius and the Feudists, Feud. Lib. 2. Tit. 17. p. 166. make proprietas, alodium, & haereditas to be all one in Feodal sense; and feodum to be contrary to them all, as res alienae proprietatis, servituti obnoxia, & successionis coercitae; and being until this time not hereditary but arbitrable.

The course being thus chang'd by the Conqueror, was presently pursued here in England according to the Norman manner as appeareth in Doomsday, where it is said, Habet—in eodem Feudo de W. Comite Radulpho de Limes. 50 ca­rucat▪ terrae sicut fit in Normannia. He joyneth Normannia with Feudum, as to shew us whence it came, and where we should see the pattern of it.

Hydes dis­us'd. The old Saxon manner of dividing the Kingdom by Hydes, and levying Souldiers according to the Hydes, grew now out of use; and instead thereof the Kings wars to be supplied by Knights Fees, the number whereof shortly after were accompted, as Sprott the Monk of Canterbury relateth, to 60215. and of them he saith 28115. were in the Clergies hand. The Normans also chang'd the name of an Hyde of Land and call'd it Carruè a Plough land, and as it seemeth in erecting and laying forth their Knight's Fees, assign'd ordinarily two Carrues or Plough land to a Knights Fee. For 'tis noted out of the Black Register of St. Edmunds-Bury, that Will. the Conqueror gave to Baldwin then Abbot there, octoginta carucatas terrae unde feodaret quadraginta Milites. And according to the rate of so much land in those times, is a Knights Fee at this day valued in the Law books but at five pounds.

The Conclusion.

I Will wander no further in this argument; I suppose I may be bold (out of that which is already said) to conclude that I was not mistaken in refer­ring the original of our Feuds in England to the Norman Conquest: and that my conjecture doth not cross the force of any Law. But now I come to an end, I must discover a great mistaking committed by him that drew the Breviate for the Reverend Judges; for he hath made us all on both sides, like Pan in Ovid, to towse a Reed-sheaf instead of Syrinx, or like Ixion to embrace a Cloud instead of Juno, to labour much about a surmis'd assertion of his own, instead of that which I deliver'd. The truth is, I have no where refer'd the original of Feuds in England to the Norman Conquest. Nay, when I spake of them, I said habentur plurima, quae apprime huc conducunt in Anglo Saxonum nostrorum legibus, and this I still affirm; but my words which he hath much perverted are these, Feodorum servitutes in Britanniam nostram primus invexit Gulielmus senior. It was neither my words nor my meaning to say, that he first brought in either Feuds or Military service in a general sense, but that he brought in the Servitudes and Grievances of Feuds, viz. Wardship, Marriage, and such like, which to this day were never known to other Nations that are govern'd by the Feodal Law. There is great difference between servitia Militaria and servitutes Militares: The one, Heroick, Noble and full of Glory, which might not therefore be permitted in old time to any that was not born of free parents; no, not to a King's son (as appeareth in Virgil,) wherein our Saxons also were very cautelous, and accounted a Souldiers shield to be insigne libertatis: the other, not ignoble only and servile, but deriv'd even from very bondage. Let not this offend: I will say no more.

Two Diſcourſes:I. Of …

Two Discourses:

I. Of the ancient GOVERNMENT of England.



Publish'd from the Original Manuscripts.

Sapientia, & disciplina, & scientia Le­gum apud Deum: Dilectio & via bono­rum apud eum.

Wisdom, and knowledge, and under­standing of the Law are of God: and Love and good works come of him.

Ecclus. 11. 15.

OF THE Ancient Government OF ENGLAND.

TO tell the Government of England under the old Saxon Laws, seemeth an Ʋtopia to us present; strange and un­couth: yet can there be no period assign'd, wherein ei­ther the frame of those Laws was abolished, or this of ours entertained; but as day and night creep insensibly one upon the other, so also hath this alteration grown upon us unsensibly, every age altering something, and no age seeing more than what themselves are actors in, nor thinking it to have been otherwise than as themselves discover it by the present. Like them of China, who never travailing out of their own Coun­trey; think the whole world to extend no further. As one therefore that hath coasted a little further into former times, I will offer unto you a rude Mapp thereof; not like those of the exquisite Cosmographers of our later ages, but like them of old, when as neither cross sails nor compass, were yet known to Navigators.

Our Saxons, though divided into many Kingdoms, yet were they all one in effect, in Manners, Laws, and Language; so that the breaking of their Government into many Kingdoms, or the reuniting of their Kingdoms into a Monarchy, wrought little or no change amongst them touching Laws. For though we talk of the West-Saxon law, the Mercian law, and the Dane law, whereby the west parts of England, the middle parts, and those of Norfolk, Suffolk, and the north, were severally governed; yet held they all an uni­formity in substance, differing rather in their mulct than in their Canea, that is in the quantity of Fines and Amercements, than in the course and frame of Justice.

Therefore, when all these Kingdoms grew into one Monarchy, as under Alured, Ethelstane, Edgar, &c, this bred no notable innovation in any of them; for the King had no new Law to impose upon his new Subjects, nor were his new Subjects unacquainted with his form of Government; having al­ways liv'd according to the same. So that when Edward the Confessor came to take away these small differences that were between these three Laws, he did it even in these fickle and unconstant times without all tumult or contradiction; making that his alteration famous rather by the new name, than by the new matter. For abolishing the three particular names before­mentioned, he now call'd it the Common Law of England, for that no part of the Kingdom should henceforth be governed by any particular Law, but all alike by a Common Law. But insomuch as this Common Law is but the half Arch of the Government, tending only to the Temporal part thereof, and not unto the Ecclesiastical; I cannot well present the one without the other, and must therefore make a project of the whole Arch, that so the strength and uniformity of both the parts may the better be conceived.

As therefore each side of an Arch descendeth alike from the Coane or top-point; so both the parts of that their Government was alike deduced from the King, each of them holding correspondency one with the other (like two loving Sisters) both in aspect, and in lineaments.

[Page 50] To begin with the right side or eldest Sister: the Estate Ecclesiastical was first divided into Provinces: Every Province into many Bishopricks: Every Bishop­rick into many Arch-Deaconries: Every Arch-Deaconry into divers Deanries: Every Deanry into many Parishes. And all these committed to their several Governours; Parsons, Deans, Arch-Deacons, Bishops and Arch-Bishops; who, as subordinate one to the other, did not only execute the charge of these their several portions: but were Accoumptant also for the same to their Superiours.

The Parson as ima species, was to hear and determine the breaches of God's peace, of love, and charity, within his parish: to reprove the inordinate life of his parishoners: and tho' he could not strike with the Ecclesiastical sword, yet might he shake it against them by enjyoning notorious offenders to con­trition, repentance, satisfaction; and sometime by removing them from the blessed Sacrament.

The Dean, to take cognisance of the life and conversation of the Parsons and Clergy-men of every Parish within his Deanry: to censure breach of Church-peace, and to punish incontinent and infamous livers by excommu­nication, pennance, &c.

And because there could be no breach of the King's peace; but it must also break the peace and unity of the Church; the Bishop's Dean, in whose Deanry the peace was broken, had in some cases 10s. for his part of the mulct, or fine thereof; as appeareth Ll. Ed. Confess. cap. 31.

The Arch-Deacon, drawing nearer to the Bishop, drew the more preemi­nence from him, and was his coadjutor in the ordination of Clarkes, having a superintendent power over all Parochial Parsons within every Deanry of his precinct.

The Bishop, as the greatest orb of the Diocess, had jurisdiction and co­ertion through the same, in all Ecclesiastical causes, and on all persons; ex­cept Monasteries exempted 1. And for this purpose had two general Sy­nods in the year, wherein all the Clergy of his Diocess assembled for de­termining matters touching the Church, as well in faith, as in Government.

But the Arch-Bishop (to bind up this golden fagot in the band of Union and Conformity) 2comprehended all the Bishops of his Province sub pallio suae ple­nitudinis, or sub plenitudine potestatis; having supreme jurisdiction to visit and reform in all their Diocesses whatsoever was defective or omitted. That by this means no transgression might break through so many wards, but if it escaped the Sword of Hasael, Jehu might slay it; or if it passed them both, yet Elisha might light upon it.

This was the modell of the Church policy; composed no doubt out of that fundamental rule of Government prescribed by Jethro unto Moses: Ap­point rulers over thousands, over hundreds, over fifties, and over tens. According to the steps whereof the State Temporal did likewise take her lineaments.

For the Temporal Government was likewise divided into Satrapies or Dukedoms, which contained in them divers Counties; the County divers Lathes or Trithings; every Trithing divers Hundreds or Wapentakes; every Hundred divers Towns or Lordships, shortly after called Baronies. And the Govern­ment of all these were committed to their several Heads; viz. Towns or Mannours to the Lords thereof, whom the Saxons called Theings, after Ba­rons; Hundreds to the Lords of the Hundreds: Trithings or Lathes to their Trithingreves; Counties to their Earls or Aldermen; and the larger Satrapies to their Dukes or chief Princes. All which had subordinate Authority one under the other; and did within the precinct of their own Territories mi­nister justice unto their Subjects.

For the Theinge or Lord of the Town, (whom the Normans called a Ba­ron) had of old Jurisdiction over them of his own Town, (being as it were [Page 51] his Colony;) and as Cornelius Tacitus saith, did Agricolis suis jus dicere. For those whom we now call Tenants, were in those ancient times but Husband­men dwelling upon the soil of the Lord, and manuring the same, on such conditions, as the Lord assigned; or else such as were their followers in the wars, and had therefore portions of ground appointed unto them in respect of that service; which portion was thereupon called a Knights-fee, for that a servant in the war, whom the Saxons called a Knight, had it allotted unto him as the fee, or wages of his service. Neither at the first had they these their fees, but at the Lord's pleasure, or for a time limited; and therefore both these kinds of Military and Husbandmen dwelling upon the Town or Colony of the Lord, were (as in reason they ought) under the censure and will of their Lord touching the lands they ocucpy'd; who therefore set them laws and customs, how and in what manner they should possess these their lands▪ and as any controversy rose about them, the Lord assembling the rest of his followers, did by their opinion and assistance judge it. Out of which usage, the Court-Barons took their beginning, and the Lords of Towns and Mannours gain'd the priviledge of holding plea and jurisdiction within those their Ter­ritories over their Tenants and followers; who thereupon are at this day called Sectatores, in French Suitres, of suivre to follow. But the Saxons themselves called this jurisdiction sacha and soca, signifying thereby Causarum actionem and libertatem judicandi; for sacha signifieth causa, in which sense we yet use it, as when we say, For God's sake; and soca signifieth liberty or priviledge, as Cyri [...]socne, libertas Ecclesiae. But by this manner the Lords of Towns (as ex con [...]etudine Regni) came to have jurisdiction over their Tenants and fol­lowers, and to hold plea of all things touching land. But as touching cog­nizance in criminal matters, they had not otherwise to meddle therewith than by the King's Charters. For as touching the King's peace, every Hun­dred was divided into many Freeborgs or Tithings consisting of ten men, which stood all bound one for the other, and did amongst themselves pu­nish small matters in their Court for that purpose, called the Lete; which was sometime granted over to the Lords of Mannours, and sometime ex­ercised by peculiar officers. But the greater things were also carryed from thence into the Hundred Courts; so that both the streams of Civil justice, and of Criminal, did there meet, and were decided by the Hundreds, &c, as by superiour Judges both to the Court Baron, and Court Leet also.

Edward the Confessor (Ll. ca. 32.) saith, that there were Justices over every ten Freeborgs, called Deans, or Tienheofod, (that is, head of ten) which among their Neighbours in Towns compounded matters of trespasses done in pastures, Meadows, Corn, and other strifes rising among them. But the greater matters, saith he, were referred to superiour Justices appointed over every ten of them, whom we may call Centurions, Centenaries, or Hundradors, because they judged over an hundred Freeborgs.

The Lord of the Hundred therefore had jurisdiction over all the Towns of the Hundred, as well in Criminal matters, as in Civil; and they that failed of their right in the Court Barons, Tithings, or Leets, might now pro­secute it here before the Lord of the Hundred, and his followers, called the Suitors of the Hundred, which were the Lords and owners of lands within that Hundred: who were tyed to be there at every Court 1; which as ap­peareth by the Laws of H. I. ca. 8. was to be holden twelve times in the year, that is, once every month: 2But especially a full appearance was re­quired twice in the year; in memory whereof the Suitors are at this day called at our Lady and Michaelmass Courts, by the Steward of the Hundred.

These (as I said before) held piea of trespasses done in Pastures, Mea­dows, Corn and such like, and of other strifes arising between Neighbour [Page 52] and Neighbour, and (as by and by also shall be shewed) of Criminal matters, touching the very life of a man.

Decrevit tum porro Aluredus, &c. ‘King Alured then further decreed, that every Free-man should be settled in some Hundred and appointed to some Freeborg or Tithing, (as did also Canutus Ll. par. 2. cap. 19.) and that the heads of these Tithings or Freeborg (whom we now call Capitales plegii) should judge the smaller matters (as in Leets, &c.) but should reserve the greater for the Hundred Court; and those of most difficulty, to the Al­derman and Sheriff in the County Court, Lamb. voc. Centuria.

The order of which proceedings in the Hundred Court do there also ap­pear out of the Laws of King Ethelred made in a great Assembly at Vana­tinge Cap. 4. In singulis Centuriis Comitia sunto, &c. ‘Let the Courts be holden in every Hundred, and let twelve men of the elder sort together with the Reve (of the Hundred) holding their hands upon some holy thing, take their oath that they shall neither condemn any man that is innocent, nor quit him that is guilty.’

And it seemeth by the Laws of Canutus, (par. 2. cap. 16. & 18.) That a man was not to be delayed above three Court days from having his right: for if he were, he might then resort to the County; and if he obtained it not there within four Courts, then he might seek unto the King. And no doubt, but this Law opened a great gap for the carrying of matters from the Hundred and County Courts up to the King's Court.

The Jurisdiction also of this Court seemeth to be further abated by H. I. who, tho' he establish'd the ancient manner of holding it; yet pulled he from it some principal parts thereof; as after shall appear in a Writ of his, touching this and the County Court, directed to the Sheriff of Worcester, (MS. Co. pa. inter 48. & 49.)

The Thrithingreve or Leidgreve (whom I take to be the same called in the Salic Laws Tungimus; but doubt whether he or no, that in our Laws of H. I. is called Thungrevius) was an officer that had authority over the third part of the County, or three or more Hundreds, or Wapentakes; whose Territory was thereupon called a Thrithing, otherwise a Leid or Lath; in which manner the County of Kent is yet divided: and the Rapes in Sussex seem to answer the same: And perhaps the Ridings also of Yorkshire; being now corruptly so called for Tridings or Thrithings. Those things therefore that could not be determined in the Hundred-Courts either for difficulty or miscarriage thereof; were from thence brought unto the Trithing: where all the principal men of three or more Hundreds being assembled, did debate and determine it: or if they could not, did then send it up nnto the County Court to be there decided, as in Parliament, by the whole body of the County.

This appeareth by the Laws of Edward the Confessor (Cap. 34.) where it is said, Erant & aliae potestates super Wapentachia, quas vocabant ðriðingas, &c. that is, There were other Jurisdictions over Wapentakes (or Hundreds) which they called Thrithings, because they contained a third part of the Province (or County.) And those that governed these Thrithings, were thereupon called Thrithingreves: before whom were brought all causes that could not be determined in the Wapentakes or Hundreds.

Tho' I find no such division of our County of Norfolk; yet I see the use thereof remained there, both till and after the times of the Conquest. For William Rufus in a controversie of the Abbot of Ramsie's about the Town of Holme in Norfolk, sent his Writ to H. Chamberlyn then Trithingreve, (as it seemeth) over that part of the County, commanding him to assemble three Hundreds and an half at a place called Fli [...]ham-burrough, (which to this day beareth that name, and is the site of the Hundred of Frebridge) there to determine the said controversie: which Writ for reviewing of the an­cient [Page 53] customs of the Kingdom, I will here adjoin, as it standeth in the book of Ramsey Abbey, Sect. 197.

Willielmus Rex Angl. H. Camerario salutem: Fac convenire & consedere tres Hundredos & dimidium apud Flicceham-Burgh propter terram illam de Holm quae pertinet ad Ringstedam, & quam Abbas Ramesiae reclamat ad victum & vesti­tum Monachorum suorum: Et si Abbas poterit ostendere ratione & testimonio Com­provincialium, quod antecessor illius eandem terram habuerit eo die quo pater meus fuit vivus & mortuus, tunc praecipio ut illam terram, & omnia quae juste perti­nent ad Abbathiam suam pacifice & honorifice habeat. Teste R. Bigod apud Wind.

Out of which Writ I conjecture that this H. Camerarius to whom it was directed, might be Trithingreve of that part of the County; the rather for that the Writ nameth him not Vicecomes as in the next precedent it doth another man, viz. Will. Rex, O. Vicecomiti salutem, &c.

And that these three Hundreds and an half were to be Judges of the cause, it appeareth by the words fac consedere, that is, cause them to sit down together. For Magistrorum & Judicum est sedere, famulorum & Ministrorum stare. Therefore it is said, Exod. 18. 13. Moses sat to judge the people, and the people stood about him: whereupon Hugo also noteth, Magistrorum est sedere.

To this purpose also is the Law of H. I. ca. 8. Si aliquis in Hundr [...] agendorum penuria [...]cum.judicium, vel casu aliquo transferendum sit in d [...]us vel tres vel amplius Hundredos respectetur justo fine claudendum. (Qu.) But it seemeth that these Judges were sworn to do right, as well as those before mentioned in the Hundred Court. And that our course now used for taking a Jury out of many Hundreds in the County, for tryal of a cause arising in one Hundred, took the beginning from the tryal in the Trithing, and that thereupon the Trithing Court grew out of use.

The Alderman of the County, whom confusedly they call an Earl, was in parallel equal with the Bishop, and therefore both their estimations va­lued alike in the Laws of Ethelstane at eight thousand Thrymses. He was a man learned in the Laws, and had the government of the whole Shire, and cognizance over all inferiour Courts and persons, both in civil matters and criminal. For which purpose he held his ordinary Court by the Shreve, 1once every month: and there resorted as Suitors, and bound by duty, all the Lords of Mannours, and principal men of the County, with the rest of the Free-holders, who were not only assistants, but Judges with him of all matters there depending, whether entred there originally, or coming thither by appeal or provocation from the inferiour Courts. Ll. Edw. seni­oris, cap. ult. Ic ƿille ðat ælc geresa hebbe gemo [...]e, &c. ‘I will that every Sheriff hold his Court about every four weeks, and that he do right equally to every man, and make an end of all Suites, under the pain before ex­pressed.’

As the Bishop had twice in the year two general Synods wherein all the Clergy of his Diocess of all sorts were ty'd to resort for matters con­cerning the Church; so also was there twice in the year a general assembly of all the Shire for matters concerning the Common-wealth; wherein, without exception, all kind of Estates were required to be present, Dukes, Earls, Barons, and so downward, of the Laity; and especially the Bishop of that Diocess among the Clergy. For in those days the Temporal Lords did often sit in Synod with the Bishops, and the Bishops in like manner in the Courts of the Temporalty, and were therein (as by and by shall appear) not only necessary, but principal Judges themselves; Ll. Canuti Re­gis, par. 2. ca. 17. ‘The Shyre-gemot (for so the Saxons called this assembly [Page 54] of the whole Shire) shall be kept twice a year (and oftner if need require) wherein the Bishop and the Alderman of the Shire shall be present; the one to teach the Laws of God, the other the Law of the Land.’

This great assembly was by the Laws of Ethelstan (ca. 20.) to be pro­claimed or published a sennight before hand; and every man tyed thereupon to be present at it, and in the mean time either to satisfie the wrong he had done to another, or to undergo the penalty; which if he refused, all he had was presently to be se [...]sed, and himself put to find sureties for his appear­ance to answer.

But because this notable assembly (otherwise called by the Authors of that time Mallum and Placitum generale) was the supreme Court of County-Justice, wherein all things of what sort soever were to be determined: we will take a little scope in description thereof: Shewing first more par­ticularly, who were bound to give their attendance here: Then, what lay in cognizance of this Court: And thirdly, in what steps they proceeded to the determination of the same. All which, because they cannot be more authentically delivered, then out of the Law it self; I will even from thence report it as it standeth in Ll. H. I. ca. 8. Sicut antiqua fuerat insti­tutione formatum, &c. ‘As it was devised by an ancient institution, and con­firmed by true report, that the general pleas of the Counties ought to be assembled in every Province of England at certain places, and before cer­tain Judges, at certain times thereto appointed; and 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.

[Page 55] 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.’


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 [Page 58] Tee and Tenures hath original, and which our Common-law also affirmeth;) that there was always due..... H [...]r [...] is [...] it [...] that [...] comes [...] [...]ms [...] from [...].

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 1call'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 State­matters 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 2Laws of Edward the Confessor, rati­fied by the Conqueror: Debet etiam Rex omnia ritè facere in regno, & per ju­dicium proc [...]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 p [...]r Baroniam, and tenere per feodum militare. But in a 3Charter 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, 4Suitors and Atten­dants. Bracton mentioneth them in Henry III's time, to be 5 Viri magnae dig­nitatis. Nor was their memory clean gone in Richard II's days; as appear­eth [Page 59] 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.

Safety,Marriage, give keep 
Attendance,Relief,Counsel toAid,
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; 1promis'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; 2to 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, 3ransom himself being taken prisoner; yea, in some places to be an hostage for his Lord.

Sustenance; 4that 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 to all these was the Tenant by Knights-service ty'd by his oath of Fealty, swearing to be feal and leal: As the oath was at those times interpreted 5as well by Divines and Canonists, as by Feodists and Lawyers.

And as these were inherent to this Tenure of Common right; so was there many other grievous exactions impos'd by the Lords upon their Te­nants; [Page 60] some by custom of the Mannour; some by Composition upon grant­ing the Fee; and many by Signioral Authority, as tho' the Lord besides his Legal Power, might do some things (like the King) by Prerogative.

By Custom, 1when the Lord or Lady came into the Mannour, the Bailiff was to present them 18 oras denar. and every of their servants 10s. with some summs of mony as gratuities, ut essent laeti animo.

That the Tenants should pay 32d. for every daughter they married 2.

It was an ordinary custom, that Lords might take (not only of their Te­nants, but of all the Country thereabout) Victuals and all other necessaries for furnishing their Castles; which how grievous it was, may well enough be conceiv'd, tho' the Statute that restrain'd it, did not testifie it. So other Lords took provision for their houshold and hospitality, within their Man­nours.

By Composition; 3as to have their Tenants attend them with horse and man in their journies; whom they call'd Road-knights. To present them yearly at times, Horses, Hawks, and other things of profit and pleasure.

By Signioral Authority; as to lye and feast themselves and followers (call'd Coshering) at their Tenants houses; and when any matter of extraordinary charge fell upon them, then to extort the same amongst their Tenants; which the Irish, about fourty years since, of my own knowledge still con­tinu'd, calling it Cuttings, according to our old word Tallagium. But among us it was taken away by the Magna Charta of King John.

I speak not of the innumerable Carriages, Angaries, and Vexations, with which they otherwise harrowed if not plagued their Tenants. Yet must I not let that pass, which every where was then in use, for Lords of Castles to imprison men at pleasure, to hold and keep distresses there against com­mon justice, and to do many outrages all about them. Wherein the Lords of Mannours imitating them, would also imprison their Tenants and fol­lowers; which Custom I saw also yet not laid down in Ireland, fourty years since. For a Meane-Lord would ordinarily say upon offence taken against a Churle, &c. Take him and put him in bolts.

But let Matthew Paris, who liv'd long after many of these oppressions were abolish'd, tell you the fashions of those times There is space [...] Quo­tat [...]n, in the [...]rigina [...]; but what p [...]ace in Mat. Paris he refers to, I know not..

Every Lord having this authority over his Tenant, the Superiour as com­prehending them all and holding in Capite, was tyed to the King to see all under his tenure to be of good Government, good behaviour, and forth­coming whensoever they should be demanded to answer any misdemeanour. This appeareth by the Laws of Edward the Confessor, where it is said, Ar­chiepiscopi, Episcopi, Comites, Barones, & omnes qui habuerint Sacam & Socam, &c. milites & proprios servientes sc. dapiferos, pincernas, &c. sub suo friburgo habeant. That is, sub sua fide-jussione de se bene gerendo.

By reason whereof, whatsoever those their Lords agreed or disagreed un­to in matters of the State and Common-wealth, it did bind every of them their inferiors. Unto whom they themselves might then also appoint Laws and Ordinances in their own Courts. And this is that which Tacitus affirm­eth to have been the ancient manner of the Germans our Ancestors; Agri­colis suis jus dicere: where under the word Agricolis, he intendeth all them whom we call Tenants.

Hence then it comes to pass, that in making Laws of the Kingdom, the common people were not consulted with, but only the Barons and those which held in Capite, who then were call'd Consilium Regni. And the common people being, as I said, by way of tenure under one or other of them, did then by him that was their chief Lord (as by their Tribune or Procurator, [Page 61] and as now by the Knights of the Shire) consent or dissent in Law-making, and are not therefore nam'd in the title of any ancient Law.

Look Doomsday-book, and there ye shall see the whole Kingdom divided only among the Barons and great Persons: and the whole Commons of the Kingdom distributed and plac'd under some of them, tho' not by name, yet by number in their several qualities.

Let us then see, how the practice of those ancient ages agreed with this Theoreme.

King Ina 1made his Laws by the advice of Kenred his father, and (as he saith himself) Heddis & Erkenwaldi Episcoporum meorum, & omnium Alderman­norum (i. e. Procerum) meorum, & seniorum sapientum Regni mei, & multa ag­gregatione servorum Dei, which is of Church-men, as I take it.

Alured briefly, 2Consilio sapientum meorum.

Edward the Elder proposeth his 3Laws not as Senatus-consultum but as Edictum Principis; viz. Ego Edouardus Rex, iis omnibus qui Reipub. praesunt, etiam atque etiam mando, ut, &c. And after by the absolute words, Praecipio, Statuimus, Volo. Yet those wherein he and Guthrun the Dane joyned, are call'd 4 Senatus-consulta.

Ethelstane made his, 5Ex prudenti Ʋlfhelmae Archiepiscopi aliorumque Episco­porum suorum consilio, nec-non omnium Optimatum & sapientum mandato suo con­gregatorum.

Edmund, in a great Assembly, 6Tam Ecclesiasticorum quàm Laicorum, cui in­terfuerunt Oda & Wulstanus Archiep. plurimique alii Episcopi.

Edgar, 7In frequenti sapientum Senatu.

Ethelred, 8In sapientum Concilio.

Canuius saith, 9Sapientum adhibito Consilio per omnem Angliam observari praecipio.

As for Edward the Confessor, his Laws come not to us as they were com­posed by himself, but as the Paragraphs of them were collected by the Con­queror, and augmented afterward. In which collection, there is no men­tion made of the manner of their Institution. But reciting of a passage of St. Austens touching Tithes, it is spoken as of former time, that Haec concessa sunt à Rege, Baronibus & populo; meaning, the several kinds of Tithes there mention'd. But whether these words extend to a concession of them by Parlament (as we now call it,) or by a voluntary contribution of them, yeilded unto by the King, the Barons, and the people, according to the Ca­nons of the Church, I leave to others to determine.

To come to times of the Conquerour; wherein Novus seclorum nascitur ordo; and from whence, as from a new period, we must now take all our projections. The great establishment of his own and of Edward the Con­fessor's Laws, is said in the title to be that which Gulielmus Rex Anglorum cum Principibus suis constituit post conquisitionem Angliae. Other Authors in­stead of Principibus have Barones. And tho' all his Laws for the most part were ordain'd by his Charter in his own name only, yet they seem to be made by 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.

[Page 62] William Rufus in An. 1094. calls 1 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 2 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. 3 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, 4reporteth 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 5Author 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 [Page 63] 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 1tribus 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 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 2 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 [Page 64] 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 1. 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. 2Bartol that famous Civilian, and 3Hotto­man 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 4Johan. de Platea likewise saith: Ʋbi 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 assid [...]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.

[Page 65] 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 XVth.

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.




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 [Page 70] 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.

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 1 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.

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 2 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 [Page 72] 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 quem lege licebat agi.

When that the three Judicial words
The Praetor might not use,
It was Nefastus: Fastus then,
When each man freely sues.

The three Judicial words were Do, Dico, Abdico; by the first he gave li­cence to cyte partem ream, the Defendant; by the second he pronounced Sentence; and by the third he granted Execution. This à latere.

The word Term hath also other considerations; sometimes it is used for the whole space, from the first Return to the end of the Term, including the day of Return, Essoigne, Exception, &c. Sometimes and most commonly ex­cluding these from the first sitting of the Judges in full Court, (which is the first day for Appearance) and this is called full Term by the Statute of 32. of Hen. VIII. cap. 21. as tho' the part precedent were but Semi-Term, Puisne-Term, or Introitus Termini. The words of the Statute are these, That Trinity-Term shall begin the Munday next after Trinity-Sunday, for keep­ing the Essoignes, Profers, Returns, and other ceremonies heretofore used, &c. And that the full Term of the said Trinity-Term shall yearly for over begin the Friday next after Corpus Christi day. Here the particulars I speak of are apparently set forth, and the Term declared to begin at the first Return. By which reason it falleth out that the eight days wherein the Court of the Exche­quer openeth, at the beginning of Michaelmass-Term, Hilary-Term and Easter, are to be accounted as parts of those Terms, for that they fall within the first Return: the Exchequer having one Return in every of them, more than the Courts of Common-Law have, viz. Crastino Sancti Michaelis, Octabis Hilarii, and Octabis or Clausum Paschae: And it seemeth that Trinity-Term had Crastino Trinitatis in the self same manner, before this Statute alter'd it.

Of the Original of Terms or Law-days.

LAw-days or Dies Juridici, which we call Terms, are upon the matter, as ancient as offences and controversies: God himself held a kind of Term in Paradice, when judicially he tryed and condemned Adam, Eve, and the Serpent. In all Nations, as soon as Government was settled, some time was appointed for punishing offences, redressing of wrongs, and determining of controversies; and this time to every of those Nations was their Term. The Original therefore of the Terms or Law-days, and the time appointed to them, are like the Signs of Oblique Ascention in Astronomy, that rise together. I shall not need to speak any more particularly of this point, but shew it, as it farther offereth it self in our passage, when we treat of the time appointed to Term or Law-days, which is the next and longest part of this our Discourse.

Of the Times assigned to Law-matters, called the Terms.

WE are now come to the great Arm of our Division, which spreads it self into many branches, in handling whereof we shall fall, either necessarily or accidentally, upon these points, viz.

1. Of Law-days among the Ancients, Jews, Greeks, &c.

2. Of those among the Romans using choice days.

3. Of those among the Primitive Christians using all alike.

4. How Sunday came to be exempted.

5. How other Festivals, and other Vacation days.

6. That our Terms took their Original from the Canon-Law.

7. The Constitutions of our Saxon Kings; Edward the Elder, Guthrun the Dane, and the Synod of Eanham under Ethelred, touching this matter.

8. The Constitutions of Canutus more particular.

9. The Constitutions of Edward the Confessour more material.

10. The Constitution of William the Conquerour: and of Law-days in Normandy.

11. What done by William Rufus, Henry I. Stephen, and Henry II.

12. Of Hiliary-Term according to those ancient Laws.

13. Of Easter-Term in like manner.

14. Of Trinity-Term and the long Vacation following; how it differeth from the other Vacations.

15. Of Michaelmass-Term.

16. Of the later Constitutions of the Terms by the Statutes of the 51. of Hen. III. and 36. of Edw. III.

17. How Trinity-Term was alter'd by the 32. of Hen. VIII.

Of Law-days among the Ancients.

THe time allotted to Law-business seemeth to have been that from the beginning amongst all, or most Nations, which was not particularly dedicated (as we said before) to the service of God or some rites of Reli­gion [...].(for none that I read of, ordain'd them to be us'd confusedly.) There­fore whilst Moses was yet under the Law of Nature, and before the positive Law was given, he sacrificed and kept the holy Festival with Jethro his father-in-law on the one day, but judged not the people till the day after. Some particular instance (I know) may be given to the contrary, as I after shall mention, but this seemeth then the general use.

[...]. The Greeks, who (as Josephus in his book against Appion witnesseth) had much of their ancient Rites from the Hebrews, held two of their 1 Pryta­nean-days in every Month for civil matters, and the third onely for their Sacra.

Aeschines▪ in his Oration against C [...]esiphon, chargeth Demosthenes with writ­ing a Decree in the Senate, that the 2 Prytanean Magistrates might hold an Assembly upon the eighth day of the approaching Month of 3 Elaphebolion, when the holy Rites of Aesculapius were to be solemnized.

[...]. The Romans likewise (whether by instinct of nature or precedent) meddled not with Law Causes during the times appointed to the worship of their Gods, as appeareth by their Primitive Law of the twelve Tables, Feriis jur­gia amovento, and by the places before cited, as also this of the same Author,

Post semel exta Deo data sunt, licet omnia fari,
Verbaque honoratus libera Praetor habet.

When Sacrifices and holy Rites were done,
The Reverend Praetor then his Courts begun.

And Martial to the same purpose,

Sacra damus [...]estis [...]ora judicialia ponunt.

To be short, it was so common a thing in those days of old, to exempt the times of exercise of Religion from all worldly business; that the Barba­rous Nations, even our Angli, whilst they were yet in Germany, the Sue­vians themselves, and others of those Northern parts would in no wise violate or interrupt it. Tacitus says of them, that during this time of holy Rites, Non bellum ineunt, non arma sumunt, clausum omne ferrum; pax & quies tun [...] tantum nota, tun [...] tantum amata. Of our German Ancestors we shall speak more anon; our old British are little to the purpose: they judged all Controversies by their Priests the Druides, and to that end met but once a year, as 4 Caesar sheweth us by those of the Gauls.

5 The later Britains (whom we now call the Wesh) in the Saxons time about the year 900. had two Terms only for causes of Inheritance; the one beginning at the ninth of November till the ninth of February; the other from the ninth of May till the ninth of August. The rest of the year was counted time of Vacation, for sowing in the Spring and Reaping in the Harvest.

Of Law-days amongst the Romans using choice days.

I Will therefore seek the Original of our Terms only from the Romans, as all other Nations that have been subject to their Civil and Ecclesiastical Monarchy do, and must.

The ancient Romans, whilst they were yet Heathens, did not, as we at this day, use certain continued portions of the year for a legal decision of Controversies, but out of a superstitious conceit that some days were omi­nous, and more unlucky than others (according to that of the Aegyptians,) they made one day to be Fastus or Term-day, and another (as an Aegyptian day) to be Vacation or Nefastus: Seldom two Fasti, or Law-days together, yea, they sometimes divided one and the same day in this manner,

Qui modo Fastus erat, mane Nefastus erat,

The afternoon was Term, the morning Holy-day.

Nor were all their Fasti applyed to Judicature, but some of them to other meetings and consultations of the Common-wealth; so that being divided into three sorts, which they called Fastos proprie, Fastos Endotercisos, & Fastos Comitiales, containing together 184. days, through all the Months of the year, there remained not properly to the Praetor, as Judicial or Triverbial Days, above 28. Whereas, we have in our Terms above 96. days in Court, besides the Sundays and exempted Festivals falling in the Terms; which are twenty or there about. Yet Sir De Rep. Angl. Lib. 3. Thomas Smith counts it marvellous, that three Tribunals in one City in less than the third part of the year, should rectifie the wrongs of so large and populous a Nation as this of England. But let us return where we left off.

Of Law-days among the first Christians, using all times alike.

TO beat down the Roman superstition touching observation of days, against which St. Augustine and others wrote vehemently; the Chri­stians at first used all days alike for hearing of Causes, not sparing (as it seemeth) the Sunday it self, thereby falling into another extremity. Yet had they some precedent for it from Moses and the Jews. For Philo Judaeus Lib. the life of Moses reporteth, that the cause of him that gather'd sticks on the Sabbath-day, was by a solemn Council of the Princes, Priests, and the whole Multitude, examined and consulted of on the Sabbath-day. And the Talmudists, who were best acquainted with the Jewish Customs, as also Ga­latinus the Hebrew do report, that their Judges in the Council called San­hedrim, sate on the week-day from morning to night, in the Gates of the City; and on the Sabbath-day and solemn Festivals, in the walls. So the whole year then seemed a continual Term, no day exempt. And they that seek the Original of our modern Laws among them, do but spend their time in vain; unless for some things impos'd on them by the Roman Empe­rours, when they became Subjects. How this stood with the Levitical Law, or rather the Moral, I leave to others.

How Sunday came to be exempted.

BUt for reformation of the abuse among Christians, in perverting the Lord's day to the hearing of clamorous Litigants, it was ordained in the year of our Redemption 517. by the Fathers assembled in Concilio Ta­raconensi, cap. 4. after that, in Concilio Spalensi, cap. 2. and by Adrian Bishop of Rome in the Decretal Caus. 15. quaest. 4. That, 1 Nullus Episcopus vel infra positus Die Dominico causas judicare [al. ventilare] praesumat. No Bishop or inferiour person presume to judge or try causes on the Lord's day. For it appeareth by Epiphanius, that in his time (as also many hundred years after) Bishops and Clergy-men did hear and determine causes, lest Christians, a­gainst the rule of the Apostle, should go to Law under Heathens and Infidels. And it is said in the 1st. Epistle of Clement (if it were truly his) that S. Peter himself did so appoint it. Concil. Tom. 1. p. 33.

This Canon of the Church for exempting Sunday, was by Theodosius for­tified with an Imperial Constitution, whilst we Britains were yet under the Roman Government, 2 Solis die, quem dominicum recte dixere majores, omnium omnino litium & negotiorum quiescat intentio. Thus was Sunday redeemed from being a part of the Term; but all other days by express words of the Canon were left to be Dies Juridici, whether they were mean or great Festivals. For it thus followeth in the same place of the 3 Decretals; Caeteris vero diebus, convenientibus personis, illa quae justa sunt, habent licentiam judicandi, excepto criminali, (or as another Edition reads it) exceptis criminalibus negotiis. The whole Canon is verbatim also decreed in the Capitulars of the Emperours 4 Carolus & Ludovicus.

How other Festival and Vacation days were exempted.

NOw let us see how other Festivals and parts of the year were taken from the Courts of Justice. The first Canon of note that I meet with to this purpose, is that in Concilio Triburiensi ca. 26. in or about the year 895. Nullus Comes, nullusque omnino secularis diebus Dominicis vel Sanctorum in Festis seu Quadragesimae, aut jejuniorum, placitum habere, sed nec populum illo praesumat cohercere.

After this, the Council of 5 Meldis Cap. 77. took Easter-week, commonly called the Octaves, from Law business; Pascae hebdomade feriandum, forensia negotia prohibentur. By this example came the Octaves of Pentecost, St. Mi­chael, the Epiphany, &c. to be exempted, and principal Feasts to be honour­ed with Octaves.

The next memorable Council to that of Tribury was the Council of Erpford in Germany in the year 932. which tho' it were then but Provincial, yet being after taken by Gratian into the body of the Canon Law, it be­came [Page 77] General, and was imposed upon the whole Church. I will recite it at large, as it standeth in 1Binius, for I take it to be one of the foundation­stones to our Terms. Placita secularia Dominicis vel aliis Festis diebus, seu etiam in quibus legitima Jejunia celebrantur secundum Canonicam institutionem, minime fieri volumus. Insuper quoque Gloriosissimus Rex [Francorum Henricus] ad augmentum Christianae Religionis, (or as 2Gratian hath it) [Sancta Syno­dus] decrevit ut nulla judiciaria potestas licentiam habeat Christianos sua authori­tate ad placitum bannire septem diebus ante Natalem Domini, & à 3Quinquage­sima usque ad Octavas Paschae, & septem diebus ante Nativitatem Sancti Johannis Baptistae, quatenus adeundi Ecclesiam orationibusque vacandi liberius habeatur fa­cultas. But the Council of St. Medard extant first in 4Burchard, and then in 5Gratian enlargeth these Vacations in this Manner, Decrevit Sancta Synodus, ut a Quadragesima usque ad Octavam Paschae, & ab Adventu Domini usque ad Octavam Epiphaniae, nec-non in Jejuniis quatuor temporum, & in Litaniis Majo­ribus, & in diebus Dominicis, & in diebus Rogationum (nisi de concordia & pacifi­catione) nullus supra sacra Evangelia jurare praesumat. The word [jurare] here implyeth that they should not try Law-causes, or hold plea 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 6 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.

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.

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 7.

Of Edw. the Elder and Gu­thrun. And 8 Alured instituted many Festivals; but the first that prohibited Ju­ridical proceedings upon such days, was Edward the Elder and Guthrun the [Page 78] 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 tocƿedon freols dagum. & rihtfæsten 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 1Law 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.

The Sy­nod of Eanham. To come to that which is more perspicuous; I find about 2sixty years after, a Canon in our 3 Synod of Eanham, under King Ethelred in these words. First, touching Sunday, 4 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 5Fast of the Ember days, and of the 6 Friday in every week to be duely kept; it proceedeth thus, 7 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.

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.

[...] leg. Cap. 17. And ƿe forheodað ordal & aðas freols dagum. & ymbren dagum. & rite fæsten dagum; & fram Adventum domini oþ se eahtoþa dag agan sy ofer tƿelf­ta dæg▪ &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 [Page 79] 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 Matth. 9. 15. Mar. 2. 19. 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.

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: 1 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 [...]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 Term­time; and here in the Text the Vacations are called Dies pacis Dei & sanctae Ecclesiae, as I 2said in he beginning. But pax Dei, pax Ecclesiae, & pax Regis, in other Laws of Edward the Confessor, and elsewhere, have other signifi­cations also more particular. Hora nona is here (as in all Authors of that time) intended for three of the clock in the after-noon, being the ninth hour of the artificial day; wherein the Saxons, as other parts of Europe, and our Ancestours of much later time, followed the Judaical computation: perhaps till the invention and use of Clocks gave a just occasion to alter it, for that they could not daily vary for the unequal hours.

The Constitution of William the Conquerour.

THis Constitution of Edward the Confessour was amongst his other Laws confirm'd by William the Coquerour; as not only 1 Hoveden and those ancient Authors testifie, but by the Decree of the Conquerour himself, in these words; 2 Hoc quoque praecipio ut omnes habeant & teneant Leges Edwardi in omnibus rebus, adauctis his quae constituimus ad utilitatem Anglorum. And in those Auctions nothing is added, alter'd, or spoken, concerning any part of that Constitution. Neither is it like, that the Conquerour did much innovate the course of our Terms or Law-days, seeing he held them in his own Dutchy of Normandy, not far differing from the same manner, having received the Customs of that his Country from this of ours, by the hand of Edward the Confessour; as in the beginning of their old 3 Custumary them­selves do acknowledge. The words touching their Law-days or Tryals be these, under the Title De temporibus quibus leges non debent fieri: 4 Notandum autem est quod quaedam sunt tempora in quibus leges non debent fieri, nec simplices, nec apertae, viz. omnia tempora in quibus matrimonia non possunt celebrari. Ec­clesia autem legibus apparentibus omnes dies Festivos prohibet, & defendit, viz. ab hora nona die Jovis, usque ad ortum Solis die Lunae sequenti, & omnes dies solennes novem lectionum & solennium jejuniorum, & dedicationis Ecclesiae in qua duellum est deducendum. This Law doth generally inhibit all Judicial proceedings, du­ring the times wherein Marriage is forbidden, and particularly all tryals by Battail, (which the French and our 5 Glanvil call Leges apparentes, aliàs appa­ribiles, vulgarly Loix Apparisans) during the other times therein mention'd. And it is to be noted, that the Emperour Frederick the Second in his 6 Nea­politan Constitutions includeth the tryals by Ordeal under Leges paribiles. But touching the time wherein Marriage is forbidden; it agreed at that day with Ll. Edw. Conf. c. 9.the Vacations from Law-business, prescrib'd by Edward the Confessour: the Church not thinking it reason, that men abstaining from litigation, should give themselves to lust, 7and to feasting and dancing, (things inci­dent to Marriage:) In which respect, it also required that man and wife (as near as they could) should at these times forbear the pleasure of their bed, and give themselves to devotion and piety. For tho' covetous persons have since abused that godly Institution to their profit, yet the Fathers that were Authors of it in Ilerdensi Concilio, about 500. years after Christ, aim'd at nothing, but meerly sanctity. The times of Marriage, prohibited ac­cording to the Constitution of the Church, were these; 8 A prima Dominica Adventus, usque ad Octavas Epiphaniae exclusive: & à Dominica Septuagesimae usque ad primam Dominicam post Pascha inclusive: & à prima die Rogationum usque ad septimum diem festi Pentecostes inclusive. The Law-Vacation, according to the prescription of Edward the Confessour, is, ab Ascensione Domini usque ad octa­bis Pentecostes. But here, the Wedding-vacation is three days before it, viz. à prima die Rogationum; which is according to the Constitution De Feriis, ca. Capellanus. So that the Term-times, and Vacations, of the English and Nor­mans, were anciently all one; and our Ecclesiastical Courts hold it so to this day. Of the Dies novem Lectionum before mention'd, we shall speak a­non.

What done by William Rufus, Henry I. King Ste­phen, and Henry II.

AS for William Rufus, we read that he pulled many lands from the Church, but not that he abridged the Vacation times assigned to it.

Henry I. upon view of former Constitutions, composed this Law under the Title, De observatione temporis 1 Leges faciendi, viz. ab Adventu Domini usque ad Octabis Epiphaniae, & à Septuagesima usque ad 15. dies post Pascham, & Festis diebus, & quatuor Temporum, & diebus Quadragesimalibus, & aliis legitimis Jejuniis, in diebus Veneris, & vigiliis Sanctorum Apostolorum non est tempus leges faciendi, idem vel jusjurandum (nisi primo fidelitate domini vel concordia) vel bellum, vel ferri, vel aquae, vel leges exactionis tractari, sed sit in omnibus vera pax, beata charitas, ad honorem omnipotentis Dei, &c. The Copies of these Laws is much corrupted, and it appeareth by Florence Wigorn's Continuer, that the Londoners refused them, and put Maud the Empress to an ignominious An. Dom. 1142.flight when she pressed the observation of them. But in this particular branch there is nothing not agreeable to some former Constitution. The word Bellum here signifieth Combats, which among our Saxons are not spoken of, and by those of Ferri vel aquae, are meant Ordeal.

King Stephen by his Charter recited at Malmesbury, confirmed and establish­ed by a Generality, 2 Bonas leges, & antiquas, & justas consuetudines.

Henry the II. expresly ratified the Laws of Edward the Confessour and William the Conquerour, as 3Hoveden telleth us, saying, That he did it by the advice of Ranulph Glanvil then newly made Chief Justice of England; which seemeth to be true, for that 4Glanvil doth accordingly make some of his Writs returnable in Octabis, or Clauso Paschae, where the Laws of Edward the Confessour appoint the end of Lent Vacation: And 5Gervasius Tilburiensis also mentioneth the same return. Yet the MSS. Laws of 6Henry II. which remain in the Red-book of the Exchequer, following the Synod of Eanham, extendeth Lent Vacation, à Septuagesima usque 15. dies post Pascha, and layeth out the whole frame of the year in this manner, under the Rubrick De ob­servatione temporis leges faciendi, viz. Ab Adventu Domini usque ad Octabis Epi­phaniae, & a Septuagesima usque ad quindecim dies post Pascha, & festis diebus, & quatuor temporum, & diebus Quadragesimalibus, & aliis legitimis jejuniis in diebus Veneris & Vigiliis singulorum Apostolorum non est tempus leges faciendi, idem vel jus­jurandum nisi primo fidelitate Domini, vel concordia, vel bellum, vel ferri, vel aquae, vel legis examinationis tractari. Sed sit in omnibus vera pax (&) beata charitas ad honorem Omnipotentis, cujus sapientia conditi sumus, nativitate provecti, morte re­dempti, consolatione securi; & qui debitor est, persolvat ante vel induciet, donec dies isti transeant, gaudiis & honestis voluptatibus instituti. Et si quis maleficium inter manus habens, alicubi retinetur; ibi purgetur vel sordidetur si solum inculpa­tio, plegiis si opus est datis, ubi justum fuerit terminanda revertatur.

The Terms laid out according to these ancient Laws.

TO lay out now the bounds of the Terms according to these Canons and Constitutions, especially that ancient Law of Edward the Con­fessour; it thus appeareth, viz.

[...] Hilary-Term began then certainly at Octabis Epiphaniae, that is the thir­teenth day of January, seven days before the first Return it now hath, and nine days before our Term beginneth; and ended at the Saturday next be­fore Septuagesima, which being moveable made this Term longer in some years than in others. Florentius Wigorniensis, and Walsingham in his 1 Hypo­digma Neustriae saith,—Anno 1096. In Octabis Epiphaniae apud Sarisburiam Rex Gulielmus [Rufus] tenuit Consilium in quo jussit Gulielmi de Anco in du­ [...]llo victi oculos eruere, & testiculos abscindere, & Dapiferum illius Gulielmum de Alderi, filium amitae illius suspendi, &c. proceeding also judicially against o­thers. Tho' Walsingham calleth this Consilium with an s, a Counsel; and Wi­gorniensis Concilium with a c, an Assembly, (the word Term perhaps not being in use under William Rufus;) yet it seemeth to be no other, than an Assem­bly of the Barons, in the King's house or Court of State, (which was then the ordinary place of Justice for crimes of this nature.) For the Barons of the Land were at that time Judges of all causes, which we call Pleas of the Crown, and of all other belonging to the Court of the King: The pro­ceeding also against these offenders seemeth meerly Legal, and not Parlia­mentary or ex arbitrio. For the tryal was according to Law, by Battel; and the judgement (after the manner of the time) by putting out the eyes and mutilation of the privy members. As for putting men to death, I confess that it was not at this time ordinary: For 2 William the Conquerour had made a Law: Interdico nequis occidatur, vel suspendatur pro aliqua culpa; sed eruantur oculi & abscindantur testiculi. But as himself observ'd it not; so his Son made not nice in breaking of it. And I think the Barons of that time did in many things, (especially crimes of Treason) ex arbitrio judicare. Be­sides this, if it had been other than an ordinary course of justice, they would not have call'd it Consilium or Concilium simply; but magnum Concilium or com­mune Concilium Regni, as the phrase then was for Parliaments. Lastly, tho' it had been a Parliament, yet they could not, or at least they would not break the Constitutions of the Church, by medling with tryals of crime and blood, in diebus pacis Ecclesiae: and therefore we must conceive it to be done in Term-time, & diebus pacis Regis, as the Canons alledg'd, and assign'd it.

I meet also with a precedent to this purpose in 3 Radevicus under the year 1160. whereby it appears, that they began their Term or Law-day likwise beyond the Seas at Octabis Epiphaniae. Curia (says he) quae in Octavis Epipha­niae Papiae fuerat indicta, usque in sextam feriam proxime ante caput jejunii (quia in destructione Cremae dominus Imperator detinebatur) est dilata.

Cust [...]t. cap. [...]. The Norman Custumary sheweth also expresly, that this Term began at Octabis Epiphaniae: in saying, that their Law-days began and went out with the times of celebrating Marriage: which in this part of the year (as we shewed before) came in at Octab. Epiphaniae, and went out at Septuagesima, as it still doth. And the Court of the Arches doth still hold the same begin­ning. The Exchequer also being brought out of Normandy, seemeth to re­tain at this day the steps of the Norman Custume. For in that it openeth [Page 83] eight days before the beginning of the Term, it openeth upon the matter at Octabis Epiphaniae: By which it appeareth that it was then no Vacation, and that the Term was begun at Octabis Epiphaniae; whereby it is the likelyer also that it ended at Septuagesima, lest beginning it, as we now do, it might fall out some years to have no Hilary-Term at all, as shall anon appear. And this our ancient use of ending the Term at Septuagesima is some inducement to think, the Council of Erpford is depraved, and that the word there Quin­quagesima should be Septuagesima, as the gloss there reporteth it to be in some other place: And as well Gratian mistakes this, as he hath done the Council Concil. Tom. self, attributing it to Ephesus a City of Ionia, instead of Erpford a Town in Germany; where Burchard before him, and Binius since, do now place it.

Mr. Ai [...]. Agard. It comes here to my mind, what I have heard an old Chequer-man many years ago report, that this Term and Trinity-Term were in ancient time either no Terms at all, or but as reliques of Michaelmass and Easter-Terms, rather than just Terms of themselves: Some courses of the Chequer yet encline to it. And we were both of the mind, that want of business (which no doubt in those days was very little) by reason Suits were then for the most part de­termined in inferiour Courts, might be the cause thereof. But I since ob­serve another cause, viz. That Septuagesima or Church-time one while trode so near upon the heels of Octabis Epiphaniae (I mean came so soon after it,) as it left not a whole week for Hilary-Term; and again, another while, Trinity Sunday fell out so late in the year, that the common necessity of Hay-seed and Harvest, made that Term very little and unfrequented.

For insomuch as Easter (which is the Clavis, as well to shut up Hilary-Term, as to open Trinity-Term) may, according to the general Council of Nice, holden in the year 322. fall upon any day between the 21st. of March exclusively, which then was the Aequinoctium, and the 25. of April inclu­sively, (as the farthest day that the Sunday following the Vernal Full-Moon can happen upon;) Septuagesima may sometimes be upon the eighteenth of January, and then could they in ancient time not have above four days Term, and we at this day no Term at all, because we begin it not till the 23d. of January, which may be six days after Septuagesima, and within the time of Church-Vacation. But what Hilary-Term hath now lost at the be­ginning of it, it hath gained at the latter ending. Of Trinity-Term I shall speak more by and by.


EAster-Term, which now beginneth two days after Quindena Paschae, be­gan then as the Law of Edward the Confessour appointed it, at Octabis. This is verified by Glanvil, who maketh one of his Writs returnable thus; Rex &c. Summone per bonos summonitores quatuor legales milites de vicineto de Stock, quod sint ad Clausum Paschae coram me vel Justiciis meis apud Westmonaste­rium ad eligendum supra sacramentum suum duodecim legales milites. But, as it began then nine days sooner than it now doth, so it ended six or seven days sooner, viz. before the Vigil of Ascension; which I take to be the meaning of the Law of Edward the Confessour, appointing the time from the Ascen­sion (inclusivè) to the Octaves of Pentecost, with Ascension-Eve, to be dies pacis Ecclesiae, and Vacation.


TRinity-Term therefore in those days began as it now doth (in respect of the Returns) at Octab. Pentecostes, which being always the day af­ter [...] 32. [...] VIII. [...] 21. Trinity Sunday, is now by the Stat. of 32. of Hen. VIII. appointed to be called Crastino Trinitatis. But it seemeth that the Stat. of 51. of Hen. III. changed the beginning of this Term from Crastino Trinitatis, to Octabis Tri­nitatis, and that therefore the Stat. of Hen. VIII. did no more in this point than reduce it to the former original. As touching the end of this Term, it seemeth also that the said Stat. of 51. Hen. III. assigned the same to be within two or three days after Quindena Sancti Johannis, (which is about the twelfth of July) for that Statute nameth no Return after.

But, for ought that hindreth by the Canons, it is tanquam Terminus sine Termino; for, there was no set Canon or Ecclesiastical Law (that I can find) to abridge the continuance thereof till Michaelmass, unless the seven days next before St. John Baptist, were (according to the Canon of Erpford) used as days of intermission, when they fell after the Octaves of Pentecost as commonly they do; tho' this year 1614. four of them fell within them: and except the Ember-days meet after Holy-Rood; for Jejunia quatuor Temporum, as well by the Laws of Canutus, and Edward the Confessour, as by all other almost before recited, are either expresly or implicitely ex­empted from the days of Law. But when Trinity Sunday fell near the feast of St. John Baptist, then was the first part of this Term so thrust up between those days of the Church, that it was very short; and the latter part being always fixt, did so hinder Hay-seed and Harvest following, that either the course of it must be shortned, or it must still usurp upon the time, allotted by nature to collect the fruits of the earth.

For as Religion closed the Courts of Law in other parts of the year, so now doth publick necessity stop the progress of them; following the Con­stitution of 1 Theodosius, thus decreeing;—Omnes dies jubemus esse juridicos. Illos tamen remanere feriarum dies fas est geminis mensibus; ad requiem laboris in­dulgentior annus excepit: aestivis quoque fervoribus mitigandis, & autumpnis fructi­bus decerpendis. This is also confirmed in the 2 Canon Conquestus; and in 3 Gratian with the Glosses upon them, to which I leave you. But it is of old thus expressed by 4 Statius, as if it were ex jure Gentium:

Certe jam Latiae non miscent jurgia Leges,
Et pacem piger Annus habet, messesque reversae
Dimisere Forum: nec jam tibi turba r [...]orum
Vestibulo, querulique rogant exire Clientes.

The Latian Laws do no man now molest,
But grant this weary season peace and rest;
The Courts are stopt when Harvest comes about,
The Plaintiff or Defendant stirs not out.

So the Longobards (our brethren as touching Saxon original) appointed for their Vintage a particular Vacation of thirty days, which 5 Paulus Diaconus [Page 85] doth thus mention: Proficiscentes autem eo ad villam, ut juxta ritum imperialem triginta 1 diebus ad vindemiam jocundaretur. So also the Western Goths (a branch of the Northern Nations) ordain'd pro messivis feriis, à 15. Kal. Au­gusti, usque ad 15. Kal. Septembris, &c. observandas. Whereby it appeareth that this time was not onely a time of Vacation in those ancient days, but also of feasting and merriment, for receiving the fruits of the earth; as at Nabal's and Absalom's Sheep-shearing, and in divers parts of England at this 1 Sam. 25. 4. 2 Sam. 13. So the Normans, whose Terms were once not so much differing from ours, might not hold their Assizes or times of Law, but after Easter and Harvest; (that is, after the times of holy Church and publick necessity) as appeareth by their Custumary. And forasmuch as the 2 Swainmote-Courts are by the ancient Forest-laws appointed to be kept fifteen days before Michael­mass; it seemeth to be intended that Harvest was then done, or that in Fo­rests little or no corn was then used to be sown.

But it is to be remembred, that this Vacation by reason of Harvest, Hay­seed, Vintage, &c. was not of so much solemnity as those in the other parts of the year, and therefore called of the Civilians, Dies feriati minus solennes; because they were not dedicated divino cultui, but humanae necessitati. There­fore tho' Law business was prohibited on these days, to give ease and free­dom unto Suiters whilst they attended on the Store-house of the Common­wealth; yet was it not otherwise than that by consent of parties they might proceed in this Vacation; whereof see the 3 Decreta Gregorii. To this effect, in a MS. of the lives of the Abbots of St. Albans, I meet with this precedent: That 4. Non. Aug. Anno Dom. 1328. Indictione 11. Comparentibus judicialiter coram nobis Offic. Cur Eborum. Commissario Generali in majore Ecclesia Eborum loco [...] pro Tribunali sedentibus fratre Johanne de Redburne, [...] S. Albani, Ordinis S. Benedicti Lincolniensis Dioeces. Procuratore, R [...]g. Virorum Dominorum Abbatis & Conventus ejusdem Monasterii verorum Pa­tronorum Ecclesiae de Appleton in Rydale Eborum. Dioc. Procuratorio pro eisdem ex una, ac Domino Waltero Flemengs Rectore ejusdem Ecclesiae personaliter ex altera: Idem Dominus Walterus Rector, tempore messium non obstante, ipsoque tunc in nobis ut in judice suo ad infra scripta judicialiter consentiente, fatebatur se teneri dictis Dominis Abbati & Conventui & eorum Monasterio in 14. libris argenti, nomine pensionis sex marcarum annuarum eisdem Religiosis ab eo & dicta sua Ecclesia de tempore quo Rector ejusdem Ecclesiae extitit, debit. & per eundem per idem tempus subtractis.

Of Michaelmass-Term according to the ancient Constitutions.

MIchaelmass-Term (as the Canons and Laws aforesaid leave it) was more uncertain for the beginning than for the end. It appeareth by a Fine taken at Norwich, 18. Hen. III. that the Term was then holden there, and began within the Octaves of Saint Michael; for the Cyrograph of it is; Haec est finalis concordia facta in Curia Domini Regis apud Norwicum, die Martis proximo post festum Sancti Michaelis, anno regni Regis Henrici filii Regis Jo­hannis 18. coram Tho. de Mulet, Rob. de Lexint, Olivero, &c. I observe that the Tuesday next after St. Michael can (at the farthest) be but the se­venth [Page 86] day after it, and yet it then must be a day within the Octaves; whereas the Term 1now beginneth not till the third day after the Octaves. But 2 Gervasius Tilburiensis, who lived in Hen. II's time, hath a Writ in these words:—N. Rex Anglorum, [illi vel illi] Vicecomiti Jalutem. Vide, sicut teipsum & omnia tua diligis, quod sis ad Scaccarium [ibi vel ibi in Crastino Sancti Michaelis, vel in Crastino Clausi Paschae] & habeas ibi tecum quicquid debes de veteri firma & nova, & nominatim haec debita subscript. viz. &c. By which it appeareth that the Term in the Exchequer, as touching Sheriffs and Accomptants, and consequently in the other parts, began then as now it doth, saying that the Statute De Scaccario, 51. Hen. III. hath since appointed, That Sheriffs and Accomptants shall come to the Exchequer the Monday after the feast of St. Michael, and the Monday after the Ʋtas of Easter But the A [...]signees to ta [...]e [...]g­nizance of weights and mea [...]ures, by the Statute of 14. Ed. 3. c. 12. are notwith­standing [...] their Estreats [...]ende­maine d [...] S. Mich [...]l, [...] morrow after [...] Rastal, weights and mea­sures.. Which time, not being ferial or Church-days, is freely allow'd to Term business, if the Octaves of St. Michael had no priviledge; of which hereafter. It is to be noted that the Term in the Exchequer hath one Return at the beginning of every Term before the first Return in other Courts, excepting Trinity-Term; viz. Crastino S. Michaelis, in Michaelmass-Term; Octabis S. Hilarii, in Hilary-Term; and Octabis or Clausum Paschae, in Easter-Term. And it seemeth, that Crastino Trinitatis was so likewise in Trinity-Term before the 3Stat. 32. Hen. VIII. And these returns or the space of eight days, in which the Exchequer is open before the full Term, (which now we commonly call the beginning of the Term) are counted to be Term-time, as appeareth by the said Statute, where it is thus enacted; That Trinity-Term shall begin the Monday next after Trinity Sunday, for keeping of the Essoignes, Profers, Returns, and other Ceremonies heretofore used, &c. And that the full Term of the said Trinity-Term, shall yearly for ever begin the Friday Here seems to be something wanting.....

The end is certainly prefixed by the Canons and Laws aforesaid, that it may not extend into Advent. And it holdeth still at that mark; saving that because Advent Sunday is moveable, according to the Dominical letter, and may fall upon any day between the twenty sixth of November and the fourth of December, therefore the twenty eighth of November (as a middle period by reason of the Feast and Eve of St. Andrew) hath been appointed to it. Howbeit when Advent Sunday falleth on the twenty seventh of November, as sometimes it doth, then is the last day of the Term (contrary to the Canons and former Constitutions) held in Advent, and consequently void, if custom help it not, or, for more security the Statute of 3. Edw. I. ca. 48. where the Bishops, at the King's request, admit Assizes and Inquests to be taken in Advent, as it after shall more largely appear.

The later Constitutions of the Terms.

TO leave obscurity and come nearer the light, it seemeth by the Sta­tutes of 51. Hen. III. called Dies communes in Banco, that the Terms did then either begin and end as they do now, or that those Statutes did lay them out, and that the Statute of 36. Edw. III. cap. 15. confirmed that use: For the Returns there mentioned are neither other, more or fewer than at this day.

How Trinity-term was alter'd and shortned.

TRinity-Term is alter'd and shortned by the Statute of 32. Hen. VIII. chap. 21. which hath ordained it quoad sessionem, to begin for ever the Friday after Corpus Christi day, and to continue nineteen days; whereas in elder times it began two or three days sooner. So that Corpus Christi day be­ing a moveable Feast, this Term cannot hold any certain station in the year, and therefore this year 1614. it began on St. John Baptist's day, and the last year it ended on his Eve. Hereupon, tho' by all the Canons of the Church and former Laws, the Feast of St. John Baptist was a solemn day, and exempt from legal proceedings in Courts of Justice; yet is it now no Vacation day, when Corpus Christi falleth (as it did this year 1614.) the very day before it: For that the Statute hath appointed the Term to begin the Friday next af­ter Corpus Christi day, which was the day next this year before St. John Bap­tist, and so the Term must of necessity begin on Saint John Baptist's day. This deceived all the Ptognosticators, who counting St. John Baptist for a grand day, and no day in Court, appointed the Term in their Almanacks to begin the day after, and consequently to hold a day longer; deceiving many by that their errour.

But, the aforesaid Statute of 32. Hen. VIII. changed the whole frame of this Term: For it made it begin sooner by a Return, viz. Crastino Sanctae Trinitatis, and thereby brought Octabis Trinitatis, which before was the first Return, to be the second, and Quindena Trinitatis which before was the se­cond, now to be the third; and instead of the three other Returns of Cra­stino Octabis, and Quindena Sancti Johannis, it appointed that which before was no Return, but now the fourth and last, called Tres Trinitatis.

The altering and abbreviation of this Term is declared by the preamble of the Statute, to have risen out of two causes, one for health, in dismissing the Concourse of people in that contagious time of the year; the other for wealth, that the Subject might attend his Harvest, and gathering in the fruits of the earth. But there seemeth to be a third also not mention'd in the Statute, and that is, the uncertain station, length and Returns of the first part of this Term, which, like an Excentrick, was one year near to St. John Baptist, another year far removed from it; and thereby making the Term not only various, but one year longer, and another shorter, according as Trinity Sunday (being the Clavis to it) fell nearer or farther off from St. John Baptist. For if it fell betimes in the year, then was this Term very long, and the two first Returns of Octabis and Quindena Trinitatis might be past and gone a fortnight and more, before Crastino Sancti Johannis could come in: And if it fell late, (as this year 1614. it did) then would Crastino Sancti Johannis be come and past, before Octabis Trinitatis were gone out. So that many times one or two of the first Returns of this Term (for ought that I can see) must in those days needs be lost.

This chap­ter is insert­ed in the [...]tion of 16 [...]4 CHAP. XVIII.
How Michaelmass-Term was abbreviated by Act of Parliament, 16. Car. I. Cap. 6.

THe last place our Statute-book affords upon this Subject of the limits and extent of the Terms, is the Stat. 16. Car. I. Chap. 6. intituled, An Act concerning the limitation and abbreviation of Michaelmass-Term. For whereas by former Statutes it doth appear, that Michaelmass-Term did begin in Octa­bis Sanctae Michaelis, that Statute appoints, that the first Return in this Term shall ever hereafter be à die Sancti Michaelis in tres septimanas, so cut­ting off no less than two Returns from the ancient beginning of this Term, viz. Octabis Sancti Michaelis, & à die Sancti Michaelis in quindecim dies, and consequently making the beginning of it fall a fortnight later than before. Wherefore the first day in this Term will always be the twenty third day of October, unless it happen to be Sunday, for then it must be defer'd till the day following; upon which account we find it accordingly placed on the twenty fourth for the year 1681. This is all the alteration that Statute men­tions, and therefore for the end of Michaelmass-Term, I refer the Reader to what our Author has said already in the 15th. Chapter. It may not be amiss in pursuit of our Author's method to set down the motives of making this abbreviation as we find them reckon'd up in the Preamble to that Statute. There we find, that the old beginning of Michaelmass-term, was generally found to be very inconvenient to his Majesty's subjects both Nobles and others. First, For the keeping of Quarter-sessions next after the feast of St. Michael the Arch­angel; Secondly, For keeping their Leets, Law-days and Court-Barons: Thirdly, For the sowing of land with Winter-corn, the same being the chief time of all the year for doing it; Fourthly, For the disposing, and setting in order of all their Winter husbandry and business; Fifthly, For the receiving aud paying of Rents; Sixthly, Because in many parts of this Kingdom, especially the most Northern, Har­vest is seldom or never Inned till three weeks after the said Feast. All which affairs they could before by no means attend, in regard of the necessity of their coming to the said Term, so speedily after the feast of St. Michael the Archangel, to appear upon Juries, and to follow their Causes and Suits in the Law.

Other Considerations concerning Term-time.

HAving thus laid out the frame of the Terms, both according to the An­cient and Modern Constitutions, it remaineth that we speak some­thing of other points properly incident to this part of our division touching Term-time, viz.

1. Why the Courts sit not in the Afternoons.

2. Why not upon some whole days, as on Grand-days, double Feasts, and other exempted days, and the reason of them.

3. Why some Law business may be done on days exempted.

4. Why the end of Michaelmass-Term is sometimes holden in Advent, and of Hilary-Term in Septuagesima, Sexagesima, and Quinquagesima.

[Page 89] 5. Why the Assizes are holden in Lent, and at times generally prohibited by the Church.

6. Of Returns.

7. Of the Quarta dies post.

8. Why I have cited so much Canon, Civil, Feodal, and foreign Laws in this discourse, with an excursion into the original of our Laws.

Why the High Courts sit not in the Afternoons.

IT is now to be considered, why the high Courts of Justice sit not in the Afternoons. For it is said in Exodus, that Moses judged the Israelites Chap. 18. v. 14.from Morning to Evening. And the Romans used the Afternoon as well as the Forenoon, yea, many times the Afternoon and not the Forenoon, as upon the days called Endotercismi or Intercisi, whereof the Forenoon was Nefastus or Vacation, and the Afternoon Fastus or Law-day, as we shewed in the beginning. And the Civilians following that Law do so continue them amongst us in their Term at this day. But our Ancestours and other the Northern Nations being more prone to distemper and excess of diet (as the Canon Law noteth of them) used the Forenoon only, lest repletion should bring upon them drowsiness and oppression of spirit; according to that of St. Jerome, Pinguis Venter non gignit mentem tenuem. To confess the truth, our Saxons (as appeareth by 1 Huntington) were immeasurably given to drunkenness. And it is said in 2 Ecclesiastes, Vae Terrae cujus Principes mane comedunt. Therefore to avoid the inconvenience depending hereon, the Council of Nice ordained, that Judices non nisi jejuni leges & judicia decernant. And in the Council of Salegunstad it was after decreed, Ʋt lectio Nicaeni Concilii recitetur, which being done in the words aforesaid, the same was likewise there confirm'd. According to this, in the Laws of Carolus Mag­nus the Emperour it is ordained, (3Logobard lib. 2.) Ʋt Judices jejuni causas audiant & discernant: and again in the 4 Capitulars Caroli & Lodovici, ne pla­citum 5 Comes habeat nisi jejunus. Where the word Comes, according to the phrase of that time, is used for Judex, as elsewhere we have at large de­clared. To the same effect is the Capitular ad Legem Salicam: and out of these and such other Constitutions ariseth the rule of the Canon Law, that Quae à prandio fiunt Consultationes, inter decreta non referuntur. Yet I find that Causes might be heard and judged in the Afternoon; for in Capitulars lib. 2. Can. 33. and again lib. 4. Can. 16. it is said, Causae viduarum, pupillorum & pauperum audiantur & definiantur ante Meridiem, Regis vero & Potentium post Me­ridiem. Which tho' it seem contradictory to the Constitutions aforesaid, yet I conceive them to be thus reconcilable: that the Judges (sitting then but seldom) continued their Courts both Forenoon and Afternoon, from Morning till Evening without dinner or intermission, as at this day they may, and often do, upon great Causes: tho' being risen and dining, they might not meet again; yet might they not sit by night, or use candle light, 6 Quod de nocte non est honestum judicium exercere. And from these ancient Rites of the Church and Empire is our Law derived, which prohibiteth our [...]Jurours, being Judices de facto, to have meat, drink, fire or candle-light, till they be agreed of their verdict.

[Page 90] It may be here demanded how it cometh to pass, that our Judges after dinner do take Assizes and Nisi prius in the Guild-hall of London, and in their Circuits? I have yet no other answer but that ancient Institutions are discontinued often by some custom grating in upon them, and changed often by some later Constitution, of which kind the instances aforesaid seem to be. For Assizes were ordained many ages after by Henry II. as appeareth by the Charter of 1 Beverly, Glanvil and Radulphus Niger; and Nisi prius by 2 Edward I. in the Statutes of Westminster 2. tho' I see not but in taking of them the ancient course might have been continued, if haste would suffer it.

Why they sit not at all some days.

THough there be many days in the Terms, which by ancient Constitu­tions before recited are exempted from Law-business, as those of the Apostles, &c. and that the 3Statute of Edw. VI. appointed many of them to be kept holy-days, as dedicated, not unto Saints, but unto divine wor­ship, which we also at this day retain as holy-days: Yet do not the high Courts forbear sitting in any of them, saving on the feast of the Purifica­tion, the Ascension, St. John Baptist, All-Saints, and the day after, (tho' not a feast) called All-souls. When 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 4Canonists. 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 5 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. 6 Omne servile opus non facietis in iis, yet it is not in that wherein he instituteth the seventh day to be the Sabbath, 7 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.

Why they sit on Ro­gation-days. 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 [Page 91] 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. 1 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.

Why on some festi­vals, and not on o­thers. 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, Before the abbre­viation, 16 Car. 1.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.

The diffe­rence of Festivals. 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 2 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 3 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 4Ordinance 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 5Bishop, or the chiefest Clergy-man present, did perform that duty. Thus came these days to their styles afore­said, [Page 92] 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: 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 34th. 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 of St. Peter [...]nd St. [...] The Feast also of St. Peter and Paul on the 29th. 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 2d. 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 1.

[Page 93] St. George's day. 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 holy­days, 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 22d. 23d. and 24th. 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.

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 1Poet 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 2Prosper,

[Page 94]
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 1Peace 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 2Glosses in Gratian, and in the Chapter Conquestus; but especially the Title 3 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. 4 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 [Page 95] was necessary therefore that this Session should not only be daily open, but (as is said of the house of Fame) 1 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 23. Henr. VII. and 21. Henr. VIII. enlarging the ju­risdiction hereof, do not circumscribe it either with Term-time or days of sitting.

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 27th. 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 3other 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.

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 Fol. 56. b.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.

[Page 96] Whether this was before or after the Statute, it appeareth not; it may seem before; for that otherwise it needed not. But I find 1 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 See in the Appendix, at the end of this dis­course, the Grants and Licences of this kind made by the Archbi­shops, and the Bishop [...]f Nor­wich.. 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 2Sir 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.

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 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 3 Ethelred the Saxon King, in case of vouching upon Trover.

Gif he cenne ofer an scira. hæbbe an ƿucena fyrrst; gif he cenne ofer tƿa scira. hæbbe tƿa ƿucena fyrst; gif he cenne ofer iii. scira. hæbbe iii. ƿucena fyrst; Ofer eal sƿa fela scira. sƿa he cenne. hæbbe sƿa feala ƿucena 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 4Henry the First is somewhat more particular; Qui residens est ad domum suam, summoniri debet de placito quolibet cum testibus. Et si d [...]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 [...]it, 15. dierum terminum habeat; & si in tertio Comitatu sit, 3. Hebdomadae; [...] quarto, quartae Hebdomadae; & ultra non procedit ubicunque fuerit in Anglia, [...] [Page 97] competens eum detineat So [...]ius.soinius; s [...]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 1Marlebridge 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 10th. 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 2Stat. 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 Lev. 23. v. 6.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, 3 Feriae autem, sive repentinae sive so­lennes sint, dilationum temporibus non excipiantur, sed his quoque connumerentur.

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 Pag. 531.which also may be added that which occurreth in Gratian Cap. Biduum vel Can. 2. q. 6. triduum. But the original proceedeth from the ancient custom of the Ger­mans [Page 98] mentioned by Tacitus; Germa­nor. 480. 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 & honorem nostrum ac jurium & dicti regni nostri commodum diligitis, nullo modo omittatis. Teste Rege apud Turrim London. XII. die Junii.

Per ipsum Regem.

¶ Vide plus de Returnis, Ll. H. II. cap. 59.

Why I have used so much Canon and Foreign Law in this discourse, with an excursion into the Original of our Law.

I Have used much Canon and some other Foreign Law in this discourse, yet, I take it, not impertinently; for as these Western Nations are, for the most part, deduced from the Germans, so in ancient times there was a great [...] and affinity in their Laws:

—Facies non omnibus una,
Nec diversa tamen, qualem decet esse sororum.

They that look into the Laws of our English Saxons, of the Saliques, French, Almayns, Ripuarians, Bavarians, Longobards, and other German Nations, about 800. years since, shall easily find it. Out of them, and other Manners, Rites and Customs of the Saxons and Germans is the first part and foundation of our Laws, commonly called the Laws of Edward the Confessour, and Com­mon Law. Two other principal parts (as from two Pole-Stars) take their direction from the Canon Law and the Law of our brethren the Longobards (descending of Saxon lineage as well as we) called otherwise the Feodal-law, received generally through all Europe. For in matters concerning the Church and Church-men, Advousons, Patronage, Presentations, Legitima­tion, Matrimony, Wills, Testaments, Adultery, Defamation, Oaths, Perjury, Days of Law, Days of Vacation, wager of Law, and many other things, it proceeded, sometimes wholly, sometimes for the greater part, by the rules [Page 99] and precepts of the Canon Law. And in matters touching Inheritance, Fees, Tenures by Knights-service, Rents, Services, Wards, Marriage of Wards, Re­liefs, Treason, Pleas of the Crown, Escheats, dower of the third part, aids, fines, Felony, Forfeiture, Tryal by battel, Essoine, Warrantie, &c. from the Feodal Law chiefly; as those that read the books of those Laws collected by Obertus and Gerardus may see apparently. Tho' we and divers other Nations (according as befitteth every one in their particular respects) do in many things vary from them, which Obertus confesseth to be requisite, and to happen often among the Longobards themselves. I do marvel many times, that my Lord Cooke, adorning our Law with so many flowers of An­tiquity and foreign Learning; hath not (as I suppose) turned aside into this field, from whence so many roots of our Law, have of old been taken and transplanted. I wish 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 are all for profit and Lucrando pane, taking what we find at Market, without enqui­ring whence it came.

Another great portion of our Common Law is derived from the Civil Law, (unless we will say that the Civil Law is derived from ours.) Dr. Cowel, who hath learnedly travelled in comparing and parallelling of them, affirm­eth, that no Law of any Christian Nation whatsoever, approacheth nearer to the Civil Law than this of ours. (His meaning is no Municipal Law.) Yet he saith that all of them generali hujus disciplinae aequitate temperantur, & quasi condiuntur. Had he not said it, his book it self, intituled Institutiones Juris Anglicani ad methodum & seriem Institutionum Imperialium compositae & di­gestae, would demonstrate it: which Bracton also above 300. years before right well understanding, not only citeth the Digests and Books of Civil Law in many places for warrant of our Common Law, but in handling our Law pursueth the method, phrase, and matter of Justinian's Institutes of Civil Law.

When and how these several parts were brought into our Common Law, is neither easily nor definitively to be expressed. Those no doubt of Ca­non Law, by the prevalency of the Clergy in their several Ages: those of the Feodal by military Princes, at, and shortly after the Conquest. And those of Civil Law, by such of our Reverend Judges and Sages of ancient time, as for Justice and knowledge sake sought instruction thence, when they found no rule at home to guide their judgements by. For I suppose they in those days judged many things, ex aequo & bono, and that their judge­ments after (as Responsa Prudentium among the Romans, and the Codex Theodo­sianus) became precedents of Law unto posterity.

As for the parts given unto Common Law out of the Constitutions of our Kings since the Conquest, and before Magna Charta; I refer them (as they properly belong) to our Statute Law, tho' our Lawyers do reckon them ordinarily for common Law.

Among these various heads of our Law, I deduce none from the Scots; yet must I confess that if those Laws of theirs, which they ascribe to Mal­colm the Second, who lived about sixty years before the Conquest, be of that antiquity, (which I cannot but question) and that our book called Glanvil be wholly in effect and verbatim for the greatest part taken out of the book of their Law, called Regiam Majestatem, for they pretend that to be elder than our Glanvil; I must (I say) ingenuously confess, that the greatest part or portion of our Law is come from Scotland, which none I think versed either in story or antiquities will or can admit.

To come therefore to the point; if my opinion be any thing▪ I think the foundation of our Law to be laid by our German Ancestours, but built up­on and polished by materials taken from the Canon Law and Civil Law. And [Page 100] under the capacious name of Germans, I not only intend our Saxons, but the ancient French and Saliques; not excluding from that fraternity the Cimbrian Nations, i. e. the Norwegians, Danes, and Normans. And let it not more mislike us to take our Laws from the noble Germans, a prime and most potent people, than it did the conquering Romans theirs from Greece, or the learned Grecians theirs from the Hebrews.

Part of this para­graph seems to be cross'd out in the original; but without it the con­nexion can­not be made good. It is not credible that the Britains should be the Authors of them; or that their Laws after so many transmutations of people and government, but especially after the expulsion (in a manner) of their Nation, or at least of their Nobility, Gentry and Free-men, the abolishing of their Language, and the cessation of all commerce with them, and an hereditary hostility settl'd between these Nations; that after all this (I say) they should remain or be taken up by the conquering enemy, who scarcely suffered one Town in a County to be called as they named it, or one British word almost, (that I yet have learned) to creep into their Language. Admit that much of their servile and base people remained behind them, pleased perhaps as well with their new Lords as with their old; can we think that the Saxons should take either Laws or Manners, or form of Government, from these base and servile people? I would not blemish the least feather of the British honour; but I must follow the truth, tho' it rubb upon the apple of their eye. What I have said, appeareth not only by Bede, (Lib. 1. cap. 15.) but by their own Historians. Bede having spoken of their most miserable extirpation throughout the whole Land, saith, Itaque nonnulli de miserandis reliquiis ..... And the chiefest monument of British Antiquity, (written in the British tongue, and brought about 500. years since out of Britannia Armorica by Walter Arch-deacon of Oxenford, and in those days translated into Latin by Monumethensis) doth report that in the days of Cadualladur, the land was so afflicted with discord, sloth, pestilence and famine, that Miserae (Britanno­rum) reliquiae patriam, factis agminibus, diffugientes, transmarinas petebant re­giones, cum ululatu magno sub velorum funibus hoc modo cantantes; Dedisti nos tanquam oves escarum, in gentibus dispersisti nos, &c. Ps. 43. 13. And Cadualla­dur himself there complaineth fleeing into Armorica, whence he never re­turned, Incumbit [divinae] illius ergo potestatis ultio, quae nos ex natali solo ex­tirpat; quos nec olim Romani, nec deinde Scotti, vel Picti, nec versutae proditiones exterminare quiverunt. And the Author going on, sheweth, that the Land was so universally destitute of British Inhabitants, that the Saxons (which were already seated here) inform'd their Country-men beyond Seas of these desolate Territories, inviting them to come and possess them. Quod cum ipsis indicatum fuisset (saith the Author) nefandus populus ille, collecta innume­rabili multitudine virorum & mulierum, applicuit in partibus Northanhumbriae, & desolatas Provincias ab Albania (i. e. Scotia) usque ad Cornubiam (Cornwall) inhabitavit. Non enim aderat habitator qui prohiberet, praeter pauperculas Bri­tonum reliquias quae superfuerant, quae infra abdita nemorum in Gualiis commane­bant. Ab illo tempore, potestas Britonum in Insula cessavit, & Angli regnare coe­perunt Here is this note in the margin of the Ori­ginal: that the Sax­ons, abjectio dominio Bri­tonum, jam [...] Ca. C [...]eperunt.Their History of Cambria (written also in their own Welch lan­guage, about 250. years since, and translated into English by their Country­man and greatest Antiquary Humf. Lhoyd) doth acknowledge, that after Cadwallader's departure, there remain'd none of his Nation, but certain poor Britains that liv'd by roots in rocks and woods. And that the Saxons, Angles, and Juthes (that is to say, Goths) being then call'd in by such of their Country-men that were there before, did come in great numbers; and di­viding this Land into divers Territories and Kingdoms, did inhabit all the Cities, Towns, Castles, and Villages, which the Britains had builded, rules, and inhabited, by the space of 1827. years. Let the Reader now judge, whether it be likely, that the scrupulous Nation of the Saxons either did, or could by any probable means take any Laws from the poor reliques of the Britains.

[Page 101] In the ori­ginal this paragraph seems to be cross'd out; for what reason I know not. When the Romans conquer'd this Land, they neither remov'd the In­habitants nor brought any Foreigners upon them, other than (to govern and keep them in obedience) some Legions of Souldiers and small Colo­nies. Yet that they made an alteration of their Laws, we may see in the Scripture by the example of Judaea. For tho' Pompey obtained the King­dom there, rather by the confederacy with Hyrcanus, than by right of Con­quest, (and therefore suffer'd them to enjoy their rites of Religion, with the liberties of most of their Cities;) yet it being reduced into a Province (as this of ours was) their laws were so changed, as by their own confes­sion, John 18. 31. It was not lawful for them to put any man to death. Therefore our Saviour and the two Thieves were judged, and suffer'd upon the cross after the Roman manner, not according to the laws of the Jews, (for their law never inflicted the cross upon any offender) and the punishment of blasphemy wherewith they charged Christ, was stoning; (In which course, they once in a fury were about to put him to death, Joh. 10. 31.) and the punishment of Theft a Quadruple Restitution, or bondage in default there­of. As for the stoning of Stephen, it was not judicial but tumultuous, an act of fury, and against Law: In which course they meant also to have murthered St. Paul, had not Lysias prevented them, by sending him to his legal tryal, Caesar's judgement Seat. Wherein it is further to be observ'd, that even then, offences committed about the very judicial Law, and Reli­gion it self, was also under the cognizance of the Roman Judge. For even that self same cause, wherein Paul stood accus'd before Festus (as Festus him­self reporteth it) Acts 25. 19. [was] Touching questions of their own Reli­gion.

By this, we may conceive, how the Romans dealt with the Britains touch­ing their Laws; and the story of St. Alhan and St. Amphibalus somewhat sheweth it. Where, according to the Roman manner, St. Alban was con­vened before the Roman Judge by Souldiers not by civil Officers, and before his Execution whipp'd (as Pilate us'd our Saviour) and then deliver'd to the Souldiers to be beheaded. Bed. Lib. 1. ca. 7.

1 But what Laws soever the Romans us'd in Britain; the Saxons doubtless swept them all away with the British Nation. Otherwise than that in com­posing [Page 102] Laws for the government of their people, after they had receiv'd Christianity from the Roman Clergy, they might perhaps (by their advice) take somewhat also from the Roman Law. Which Beda seemeth to avouch, Lib. 2. ca. 5. speaking of the acts of Ethelbert the first Christian Saxon King: Qui inter caetera bona quae genti suae conferebat; etiam decreta illi judiciorum, juxta exempla Romanorum, cum consilio sapientum constituit. What Beda meant by the words Juxta exempla Romanorum, is not perspicuous. As, whether his meaning was, that he made positive Decrees, as the Romans had done, for the government of his people? or, that in making his Decrees, he took the sum and manner of them from the Romans? This doubt we shall easily resolve, by that which followeth in Bede himself: Quae (decreta) conscripta Anglorum sermone, hactenus habentur & observantur ab ea. In quibus primitus posuit, qualiter id emendare deberet, qui aliquid rerum vel Ecclesiae, vel Episcopi, vel reliquorum ordinum furto auferret, volens scil. tuitionem eis, quos & quorum do­ctrinam susceperat, praestare. And to say truth, this that Bede here doth men­tion touching the protection of the Clergy, is the chiefest matter in them that he taketh from the Romans, as namely, from their Canons not from their Civil Law. For the secular part of those his Decrees differ far from those of the Romans, as by the Saxon copy of them (which I my self have to shew) appeareth plainly. But to conclude this point; whatsoever in them savoureth of the Roman law, be it Canon or Civil, it doubtless was inserted by his Roman Clergy, being then a principal part of the King's Council, (as the Clergy was afterward in all ages.) And of them chiefly, I suppose that to be meant which Bede mentioneth, Cum consilio sapientum con­stituit. We find among the Saxons, the example 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 Au­thor's name is so ob­scurely writ, that I cannot [...]ad it. ..... 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 [Page 103] 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.


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. Ʋt 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 igitur mandamus, quod cum Archi­episcopus Ebor. hoc nobis concesserit, & literas suas patentes nobis habere fecerit, Iter Justic. nostr. in Comitat qui ..... sunt jurisdictioni praedicti Archiepiscopi Ebor. & aliis Comitat. subsint jurisdictioni Archiepiscopi Cantuar. usque ad praefatum terminum, si opus fuerit, continuetis solita prudentia & solitudine. Quod non dubita­mus vos esse facturos negotiis nostris expediendis ad commodum & honorem nostrum intendent. Dat. apud Westm. 3. die Nov.

In custodia Franc. Bacon de Graies-Inn Armig. 1. Febr. An. 1633.

Discreto Viro Domino Tho. Weyland Illustr. Reg. Angl. Justic. Rogerus de Sker­wing.R. miseratione divina Norwic. Episcopus salutem & honoris augmentum. Cordis nobis est ut omni tempore Justitia debitum & celerem sortiatur effectum. Hinc est quod cum Ass. ultimae praesentationis super Ecclesiam de Kirkby omnium Sanctorum inter Imann. quae fuit uxor Ric. de Thwait querentem, & Ricardum lc Cam defendentem, coram vobis sit arannata, ut intelliximus, Vobis auctoritate praesentium permittimus quod non ob­stante instanti Quadragesima Assisam praedictam inter partes praedictas etiamsi jura­mentum interveniat licite capiatis: Valete. Dat. apud Buketon 11. Kal. Martii, [...]o. Henr. III.Anno Domini M. CC. LXXVI.


A SHORT APOLOGIE For Arch-bishop ABBOT, Touching The death of PETER HAWKINS.

By an unknown Hand.


As also, Several Letters relating to the same Fact: With a Copy of The Dispensation for Irregularity, Granted to the Arch-bishop.

And a Treatise Of the Original of TESTAMENTS and WILLS, And of their PROBATS, And to whom it anciently belonged.

By the said Sir HENRY SPELMAN Kt.

AN APOLOGIE For Arch-bishop ABBOT, Touching The death of PETER HAWKINS the Keeper, Wounded in the Park at Bramsil, July 24. 1621.

1. IT is certain that in foro conscientiae, this case may not only deservedly produce a fear and trembling in him who was the accidental cause thereof; but may justly make the tallest Cedar in Lebanon to shake, in recount­ing with his inward man, what sin it is that hath pro­voked God to permit such a rare and unusual action to fall out by his hand: which maketh him, for the time, to be Fabula vulgi, and giveth opportunity to the enemies of Religion of all kinds, to rejoice, to speak their pleasure, to fill their Books and Li­bels, within the Realm, and perhaps, beyond the Seas. And that, concern­ing his Calling as well as his Person, not only for the present, but also in fu­ture ages; beside Grief to his friends, and some Scandal to the weak, who do not rightly apprehend things, but raise questions which few men can re­solve. To all which may be added, the interpretation of it by his Majesty, graciously or otherwise; and the forfeiture, that in rigorus construction of Law may be put upon him, although held for no great Delinquent; besides the providing for a Widow and four Fatherless children. All which may pierce a heart that is not senseless; and day and night yeild him matter e­nough of troubled meditations.

2. And yet, lest he that intended no ill (much less to that person, a poor man and a stranger to him) should be swallowed up with sorrow; he is not devoid of some comfort, as that Consensus facit peccatum, and Voluntas facit reatum; and where those concurr not, misdemeanours are properly contra nullum Decalogi praeceptum. And that when God, speaking of such casual death (Exod. 21. 13.) useth these words, If a man lye not in wait, but God de­liver him (the slain man) into his hands; Divines collect thereupon, that it is not humanum but à Deo, which no man's Providence can absolutely prevent. For what God will have done, shall be; and no Creature may dare to set him to school in what manner, or by what person he will have it perform'd. And Deuteronom. 19. 6, 10. God putting the case of the man slain by the iron of his Neighbour's ax slipping off, appointeth Cities of Refuge, lest he should be slain also; who (as he saith) was not worthy of death: and again, that in­noxius sanguis, innocent blood be not shed in the Land. Where we may col­lect, that such cases are foreseen and order'd by God himself; and that no Calling, no not that of the Priest, is free from that which God will have ac­complish'd; since he must communem hominum subire sortem. Homo sum, hu­mani [Page 108] nihil a me alienum puto. And, Quod cutque contingere potest, cuivis potest; although of all others, the Priest should be most wary, what he attempt and how.

3. There is no Text in the Old Testament which directly distinguisheth the Priest from other men, in case of Blood; but there are examples (which may not be apply d to Evil, for that were to pervert them) resolving one scruple which is made. As Moses was no Priest, yet he gave down the Law; and he consecrated Aaron the High-priest, notwithstanding the time was that he had kill d the Aegyptian. The Levites slew 3000. of the Israelites, after the Idolatry with the golden Calf. Phineas, who was afterwards the High-priest, slew the Israelitish man with the Midianitish woman, and was blessed by God for it. Samuel hewed Agag to pieces. Jehoiada the Priest commanded Atha­l [...]ah the Usurper to be slain. The Machabees fought for their Countrey; and so took away the lives of many a man. Paul was consenting to the death of Stephen. Peter, (although rebuk'd for it) cut off the ear of Malchus. Jose­phus the Jew, of the seed of the Priests, was Captain over Judah, and fought divers times. Out of all which, I do only make this collection; That the Priest s restraint from blood, is not ex jure divino, but ex jure positivo; Pon­tificio soil. vel Canoni [...]o, or Ecclesiastico, as we call it; out of caution, for purity, and decency, and good congruity for so holy a Calling, which cometh so near God, and attendeth at his Altar.

4. See then in the Ecclesiastical Law, what Grace is afforded to him, who against his will, hath casually been the death of another. There is in the Decretals, a title De homicidio voluntario vel casuali: concerning the latter of which, there be many 1Rescripts; which demonstrateth, that in human life such things do frequently fall out. In these, there are five Chapters, Cap. Lator: Cap. Dilectis siliis: Cap. Ex Litteris: Cap. Ex Litteris tuae: Cap. Jo­annes: Where the Rubrick is, Homicidium casuale non imputatur ei qui non fuit in culpa: and Homicidium casuale non imputatur ei qui dedit operam rei licitae, nee fuit in culpa. And there the Decision is evermore, that there is no Irregularity in promovendo, or in promoto ad sacros ordines.

This is the more to be noted, because it is not the 2Interpreters, but the body of the Law. And the Gloss thereupon hath; Nota, quod homicidium casu commissions, culpa non praecedente non est imputandum. And, 3 Sibi imputari non debet, quia fortuitos casus, qui praevideri non possunt, non praevidit. And, De casu fortuito nullus tenetur, cum praevideri non possit. And upon this the stream of the Canonists do run, as by a multitude of Books may be shew'd: with whom our 4 Bracton, a great Civilian and Common Lawyer too; Homicidium casuale non imputatur.

5. The two heads whereto the Law looketh, freeing a man from blame, and expresly from Irregularity, are; that the person by whom the Action is perform d, do not dare operam rei illicitae, and that he use diligence of his part that no hurt be committed. 5 Azorius the Jesuite saith, Irregularitas, cum ob de­lictum constituitur, non nisi ex lethali peccato contrahitur: nisi ex homicidio fiat quis irregularis, eo quod det operam rei vetitae & interdictae; nam tunc quamvis homici­dium casu sequatur, ob culpam nostram levem vel levissimam, multorum est opinio irregularitatem contrahi. 6And Ivo in his Canons, some hundreds of years be­fore him; Si duo fratres in sylva arbores succiderint, & appropinquante casura unius arboris, frater fratri dixerit Cave, & ille fugiens, in pressuram arboris inci­derit, ac mortuus fuerit, vivens frater innocens de sanguine germani dijudicatur. Now, the ca [...]e at Bramsil, is within the compass of these two conditions. For the party agent, was about no unlawful work: for what he did, was in the day, in the presence of fourty or fifty persons, the Lord Zouch, who was [Page 109] owner of the Park, not only standing by, but inviting to Hunt and Shoot; and all persons in the Field were call'd upon to stand far off, partly for avoid­ing harm, and partly lest they should disturb the Game; and all in the Field perform'd what was desir'd. And this course did the Lord Arch-bishop use to take, when or wheresoever he did shoot; as all persons at any time pre­sent can witness: never any man being more solicitous thereof, than he ever­more was. And the morning when the deed was done, the Keeper was twice warn'd to stay behind, and not to run forward; but he carelesly did otherwise, when he that shot could take no notice of his galloping in before the Bow; as may be seen by the Verdict of the Coroner's Inquest.

6. This case at Bramsill is so favourable; that the strictest Writers of these times, directly conclude, that if a Clergy-man committing casuale homicidium be about a forbidden and interdicted act, yet he is not irregular, if the inter­dicted act be not therefore forbidden, because it may draw on Homicide. And thereupon, inasmuch as Hunting is forbidden in a Clergy-man, not in respect of danger of Life, but for Decency, that he should not spend his time in Exercises which may hinder him from the study fit for his Calling, or for other such reasons; Irregularity followeth not thereupon. And to this pur­pose, writeth at large 1 Soto, Covarruvias, and Suarez, who are great Cano­nists and Schoolmen. And if this be true, (as out of great reason it may be so held) how much further is the present case in question from Irregu­laritie.

7. But some go directly to the point, and say, that the Lord Arch-bishop did navare operam rei illicitae, because he was on Hunting; for that was inter­dicted to a Bishop by the Canon De Clerico Venatore; and so by a consequent he must needs be Irregular. To which objection, see how many clear and true answers there be. As first, that the Canon being taken out of the De­crees, is by Gratian himself branded to be Palea, no better than Chaff. Se­condly, it is cited out of the fourth Council of Orleans; and there is no such thing to be found, as the Gloss well observeth. Thirdly, it forbiddeth Hunting cum canibus aut accipitribus; and none of these were at Bramsil. And if you will enforce it by comparison or proportion, the rule of the Law is, Favores sunt ampliandi, odia restringenda: Where mark, when Hunting with Dogs or Hawks is forbidden, it is not for fear of Slaughter, for there is no such danger in either of them. Fourthly, the Canon forbiddeth Hunting voluptatis causa, but not recreationis or valetudinis gratia, which the Books say is permitted etiam Episcopo. Fifthly, the Canon hath, Si saepius detentus fuerit, if he make a Life or Occupation of it; which the world knoweth, is not the Arch-bishop's case, but a little one time in the year, directed so by his Phy­sician, to avoid two diseases, whereunto he is subject, the Stone and the Gout. Sixthly, it is clamosa venatio against which the Canon speaketh, not quieta or modesta, which the Canonists allow; and this whereof the question ariseth, was most silent and quiet; saving that this accident, by the Keeper's unadvised running in, hath afterwards made a noise over all the Countrey.

8. These Exceptions, as they naturally and without any enforcing, give answer to this Objection of the Canon; so there is another thing that may stop the mouth of all Gain-sayers; if any Reason will content them. And that is, that by the Stat. of Henr. VIII. 35. ca. 16. no Canon is in force in England, which was not in use before that time, or is not contrary or dero­gatory to the Laws or Statutes of this Realm, nor to the Prerogatives of the Royal Crown: of which nature this is. For in Charta de Foresta, Arch­bishops and Bishops by name have liberty to Hunt: and 13. Ric. II. cap. 13. a Clergy-man who hath 10l. by the year, may keep grey-hounds to hunt. And Linwood, who liv'd soon after that time, and understood the Ecclesia­stical [Page 110] Constitutions and the Laws of England very well, in treating of Hunt­ing, speaketh against Clergy-men using that exercise unlawfully; as in places restrain'd or forbidden; but hath not one word against Hunting simply. And the Arch-bishop of Canterbury had formerly more than twenty Parks and Chaces of his own, to use at his pleasure; and now by Charter hath free­warren in all his lands. And by ancient Record, the Bishop of Rochester, at his death, was to render to the Arch-bishop of Canterbury his Kennel of Hounds as a mortuary, whereof (as I am credibly inform'd) the Law taketh notice for the King Sede vacante, under the name of Muta canum and Mul­ctura. To this may be added, the perpetuated use of Hunting by Bishops in their Parks, continu'd to this day without scruple or question. As that most Reverend man the Lord Arch-bishop Whitgyfte us'd in Hartlebury-park while he liv'd at Worcester; in Ford-park in Kent; in the Park of the Lord Cobham, near Canterbury; where, by the favour of that Lord, he kill'd twenty Bucks in one journey; using Hounds, Grey-hounds, or his Bow, at his pleasure, al­though he never Shot well. And the same is credibly reported of the Lord Arch-bishop Sandes. And it is most true, that the Deans and Chapter of Winchester use it as they please in their Franchise. To say nothing of Dr. Rennal, whose Hounds were long famous throughout all England; and yet he was by profession a Canonist; and knew well what induced Irregularity.

I will add two things more, which directly appertain to the Arch-bishop of Canterbury. The one is, the famous Record, That at the Coronation of Queen Eleanor, wife to Henr. III. the Earl of Arundel (who was by his place Cup-bearer for that day) was enforc'd to serve by a Deputy, because he was Excommunicated by the Arch-bishop, for taking up his Hounds coming into the Earl's grounds to Hunt; where the Arch-bishop pleaded and alledg'd that it was lawful for him to Hunt within any Forest of England, whensoever he would. The other, is that which is written of Arch-bishop Cranmer, in his life; where I will cite the very words: Permiserat ei pater aucupium, vena­tionem, equitationem, &c. Quibus quidem, cum jam Archiepiscopus relaxare ani­mum & abducere se à rebus gravioribus vellet, ita utebatur, ut in famulatu suo non fuerit quisquam qui in generosum equum salire ac tractare elegantius, aut aves fe­rasque aucupio aut venatione insequi commodius intelligentiusque potuisset: Saepe etiam, etsi oculis infirmis esset, arcum tendens, sagitta percussit seram. Out of all which, and many more Records and Cases that are to be shewed, the Con­clusion is clear, That howsoever the Canon may touch Bishops and Clergy-men beyond the Seas, it meddleth not with the Bishops of England, who by favour of Princes and the State have Baronies annext to their Sees. So that it doth arise out of true collection from these Heads, that there is no danger of Irregularity in the Lord Arch-bishop's case, either toward himself or o­ther men. His Majesties Princely Grace giveth an end to all; and this he most humbly craveth. For other things, God being appeas'd (as he hopeth that he is) he dreadeth not the tongue or pen of any enemy: among whom, the Popes and Cardinals have wilfully committed many poisonings, murthers, and outragious acts; and yet they must believe that they are the head and chiefest members of the Church.

AN ANSWER TO THE Foregoing Apologie for Arch-bishop Abbot;

TOuching the First, Second, and Third Sections: It may be that the Priests in the old Law (whose Ministry was alto­gether in blood) were not prohibited but that upon just occasion they might shed even the blood of man as well as of beasts; and put on an Armour as well as an Ephod. For the Tabernacle was covered with red Skins, to signify cruentum Seculum, cruentum Ministerium: and Moses (whose hands were dipt in blood) was not forbidden to be the chief Founder thereof. But when the Temple came to be built (which was the image of the Church of Christ) then the hands of David, tho' they had fought the battles of God, yet because they were seasoned with blood, they might not lay one stone in that Foundation. Therefore, when the old Law and this bloody Priesthood were grown to an end, and going out of the world, and that the Priests of the Gospel were entring in their room into the world; our Saviour commanded Peter to put up his sword; for now, Arma horrentia Martis rejicienda; and stola candida induenda fuit. Tho' then some Priests in the old Law and many thousand Levites were Martial-men, yet for many hundred years in the time of the Gospel, I read not of any: insomuch, that the succeeding ages desiring a Martial Saint, were driven to suppose St. George. Whether therefore these Laws of the Church, which at this day prohibit Clergy-men to meddle with matters of blood, be meerly ex jure positivo, or ex divino mixto, I leave it to the determination of the Reverend Divines.

4. Concerning the Cases alledg'd out of the Decretals: it is true that the Rubrick is, Homicidium casuale non imputatur ei qui non fuit in culpa; and Ho­micidium casuale non imputatur ei qui dedit operam rei licitae, nec fuit in culpa. And so likewise, is that alledg'd out of the Gloss thereupon, and out of Bracton. But let us parallel the case in these with them, which are as followeth.

A. and P. two Clerks Sporting together, A. by chance threw P. down, who having a knife by his side, the same happened to wound A. that he died. Pope Alexander III. commanded the Bishop of Exeter in this case to admit P. to holy Orders; for Sporting was lawful.

A sickly Chaplain being gotten upon an unruly Horse, and he checking him with Bridle and Spur to stay him, the Horse brake his Bridle, cast his Master, and running over a Woman coming by, kill'd a Child in her arms. This Chaplain was admitted to holy Orders, for that neither in Will nor Act he committed Homicide, but also did a lawful Act.

One being to unlade a Cart of Hay, looked round about to see if any were near, and seeing none, threw a stack off the Cart, and having unladed it, a Boy was after found dead with a little stripe in his face. This Priest after Ca­nonical purgation was admitted to his place.

[Page 112] A Monk helping to take a Bell down out of a Steeple, casually thrust down a piece of timber, which bruised a Boy to death. The Monk is judged not uncapable of further Ecclesiastical Preferment, for that the business was neces­sary, and the place not for ordinary resort.

A Priest tolling a Bell to Prayers, the same fell and killed a Boy. The Bishop is commanded to suffer the Priest to execute his Function, for Nihil potuit imputari, si casus omnes fortuitos non praevidit.

Tho' there be many points in all these cases (and more in some than o­thers▪ to excuse the Parties agent; yet will I meddle only with those two which are most eminent, and offer d by the Apologist; that is, Animus or Intentio innocua, and Actio legitima. Touching the Intent, none is so impious as to imagine that his Lordship intended to hurt any man: yet is there this diffe­rence between his intent and theirs in the cases alledged: they intended to hurt neither Man nor Beast, he, tho not to hurt a Man, yet to kill a Beast: they, nihil saevum aut non legitimum: he, legitimum quiddam sed tamen saevum. For there is a kind of cruelty in the slaughter of every thing; and therefore in the old Law (Lev. 17. 13.) He that taketh any beast or fowl by hunting that may be eaten; shall pour out the blood thereof, and cover it with dust; that the cruelty appear not, as [...] take it. And in our Law, those that were exercised in slaughter of Beasts, were not received to be tryers of the life of a Man. Much is to be said out of Histories to this purpose.

But to come to the point whereon all dependeth, Whether the Action his Lordship was now about, be lawful or not? The places of Azorius and Ivo are truly cited; and I doubt them not to be Law: that is, to this effect, ‘That it worketh no Irregularity, where, in a lawful action a Clerk killeth a Man casually, having first used all diligence to prevent it.’ And it appear­eth that his Lordship did this so carefully, that all were continually called upon, not only to stand off, but so farr off as sheweth his Lordship to be very unskilful in the use of his Bow; and may therefore touch him in Discretion for meddling with so dangerous an Engine in so great an Assembly; and con­sequently produce Irregularity even by the words of Azorius alledged to excuse him, tho' the action be lawful: nam tunc quamvis homicidium casu sequatur, ob culpam nostram levem vel levissimam, multorum est opinio Irregularitatem contrahi.

But not to fall from the tree by reaching at a twig; we will rest upon the chief Station in the case, the Nature of the Action; which tho' it be forbid­den, yet according to Soto, Covarruvias and Suarez (as it is alledged) induceth not Irregularity when Homicide follows thereon, if it be not therefore for­bidden, because it may draw on Homicide: concluding, that tho' Hunting be forbidden to a Clergy-man, yet for that it is not forbidden in respect of danger of Life, but for Decency, &c. Irregularity followeth not thereupon. As for Covarruvias and Suarez, I have them not; but Soto is not happily al­ledged. For tho' he incline to that opinion (with Cajetan) yet he taketh a a distinction that woundeth the Case in question; and that is, Venatione, quae armis & telis fit, profecto siet Clericus irregularis: and this falleth out to be now the Case. For this Hunting was perform'd with a Cross-bow, a deadly and a dangerous weapon, that hath been the occasion of many bloody misfortunes. But in a former passage, Soto also saith, that Cajetan and Sylvester and Doctores [...]uris Canonici universalem regulam astruunt, quod omnis qui dat operam rei illi [...]itae, quandocunque ex illa datione sequatur homicidium, fiat irregularis. And Azpilcu­ [...]ta Navarrus saith, that Cajetan in the other place (and by consequence Sotus) is to be understood with a limitation, as meaning Venationem passerum & per­di [...]um ad aucupis cantum, vel accipitris, sine armis in provinciis—non venatio­nem ursorum, aprorum, & cervorum, quae armis exercetur. Enchirid. cap. 27. Sect. 237. Wherein, the distinction he taketh, making a main difference between Venationem ludi [...]ram and Venationem Martiam, concludeth plainly, the Case in hand to have wrought Irregularity. And the Apologist finding no sure [Page 113] ground in this Assertion, buildeth no otherwise upon it, than if it be true as out of great reason (he saith) it may be so held: and passeth from it to his chiefest place of refuge, shewing that the Canon that makes Hunting to be actio illicita doth no way touch his Lordship.

First, for that upon the matter there is no such Canon: insomuch as Gra­tian himself (that collected the Canons) brandeth this to be Palea and no better than Chaff. It is true, he brandeth it with the term Palea, and was a worthy Man; but noted generally to have mistaken many things, and some extremely. But if that be the meaning of the word, his error seemeth very perspicuous, as finding this Canon ascribed to the Council of Orleans and not finding it there, he presently branded it, Palea. But the Canonists have many other opinions of it, as to signifie [...] antiqua; or of [...] rursum. John Andrea, Imota, Alexandrinus and Jason, famous Professors, think this title to be put over the heads of many Canons, to signifie they were added by Protopalea a Cardinal, since Gratian's time. And experience ex­cludeth the first interpretation of the word, for that the Canons so entituled are very many, and not rejected as spurii or palea. Besides, Burchard Bishop of Wormes, who lived long before Gratian, hath this very Canon in his se­cond Book, cap. 213. and there ascribed (as it ought) to the Council of Meldis; as also by Ivo, part. 6. ca. 288. If then it be any where in the Coun­cils, it sufficeth; tho' the Collector mistook the place, which is easily done: as even the Evangelist Matthew (ca. 27. 9.) citeth a place out of the Prophet Jeremy, which is not found there, but in Zachariah.

It is apparent also that many Copies of Councils are unperfect, and want some of the true Canons, as neglected or not finished by the Notary. But if need be, this Canon hath further warrant, even from the times almost of the primitive Church. For in Concil. Agathensi, of 35. Bishops in An. 435. ca. 55. it is said, Sacerdotes & Levitae canibus ad venandum & accipitribus non utantur. And in Concil. Epaunensi, of 70. Bishops, in An. 492. 1 Ʋt Episcopi venatores non sint, nec accipitres alant. The Capitularies also of Ludovicus Imp. taking notice of it, about the year 820. prohibiteth Priests, ut Venationes ferarum vel avium minime sectentur. Addit. 3. ca. 43. So that we have no reason to account this Canon either supposititium or paleam; but rather to be (as it is in­deed) [...] antiquum or ex antiquis. According to which sense, the Ca­nons of like nature in the Laws of the Wisigoths or Western-Goths are in every passage intituled by the very Latin word (not the Greek) Antiqua. And Justinian himself seemeth to have had this Distinction in his eye, when he called his later Constitutions [...], i. e. Novellas, that so they might be mark'd from those of old, which Cedrinus in Justinian's life calleth [...], Leges antiquas.

His second Objection is, That it is cited out of the fourth Council of Or­leans, and it is not there. This we have already answered, and shewed where it is.

Thirdly, he saith it forbiddeth Hunting cum canibus & accipitribus, and none of these were there. It is strange, a Keeper should go about to strike a Deer, and not have his Lyme-hound to draw after him. But the Canon goeth fur­ther, Canes ad venandum, aut Accipitres, aut hujusmodi res habere non licet. Where hujusmodi res seemeth to contain all instruments used in Hunting.

Fourthly, voluptatis causa; not recreationis or valetudinis, which the Books say is permitted etiam Episcopo. What his Books say, I know not; but my Book saith thus: Dic breviter, quod venari causa voluptatis est mortale peccatum, & in laico; sed venari causa necessitatis vel indigentiae corporis non est mortale pecca­tum; in Clerico tamen potius prohibetur. But he adjoineth, In venatione, potius delectatio quam actus attenditur. Atho. in Othob. fol. 114. b. Neither is there [Page 114] here any mention of Recreatio, unless Delectatio and it be all one (as commonly we use it) and then forbidden. Besides, what action or recreation belonging to health is there, in letting off a Cross-bow; wherein neither Head, Hand nor Foot, no, not the nimblest member of the Body (the Eye) stirreth all that while.

Fifthly, the Canon hath, St saepius detentus fuerit, if he make a Life or Oc­cupation of it, which his Lordship did not. Burchard saith detectus, and with more reason: and I suppose his Lordship useth it very temperately: yet the Apologist in his Fifth Section insinuateth, that his Lordship doth it often.

Sixthly, whereas he saith that the Canon speaketh against Clamosa venatio, not quieta or modesta; I find no such word or distinction in the Canon: yet is there no doubt, that if the Deer be not kill'd out of hand; but in recover­ing him, there must be both Clamor and Venatio.

Thus he counteth the mouth of the Canon to be stopt. Yet because it is good to make sure work with so dangerous an object, now he setteth Law upon Law, the Common against the Canon or at least the Statute, which indeed hath crack'd a great sort of Canons. ‘That by the Statute of Henry VIII. 35. ca. 16. No Canon is in force in England, which was not in use, or is contrary or derogatory to the Laws or Statutes of this Realm, or to the Prerogatives of the Royal Crown’. Of which sort (he saith) this is one, and gives his reasons: for in Charta de Foresta Arch-bishops and Bishops by name have liberty to Hunt: and 13. Ric. II. ca. 13. A Clergy-man who hath 10l. by the year, may keep Grey-hounds to Hunt.

The name of Charta de Foresta (and also of Hunting) is, Clero lachrimabile nomen. For the first breach that ever was made into the freedom of Clergy-men, and which gave passage to all that followed, rose from the occasion of Clergy-mens Hunting in Forests: which Henry II. greatly discontented with, never rested, till by assent of the Pope's Legate Hugo Petro-leonis, he obtained a Law in the twenty first year of his reign, An. Dom. 1157. To con­vent them therefore before secular Judges, and there to punish them.

But to our purpose: There is no contradiction (as I take it) between the Canon de Clerico Venatore, and Charta or Statutum de Foresta. The Canon doth say, They shall not Hunt; and the Statute doth not say they shall. The words of the Statute ca. 17. are thus: An Arch-bishop, Bishop, Earl, or Ba­ron coming to us upon our command and passing through our Forest, Liccat ei capere unam bestiam vel duas, per visum Forestarii, si praesens fuerit: sin autem, faciat cornare, ne videatur furtum facere. Here is no word of Hunting; but that they may take a Deer; and this they will say cannot be but either with Dogs or Engine, and so consequently by Hunting. But the very words of Charta de Foresta seem to shew, that it was not meant, the Bishop should be an Huntsman, for that it admitteth him not to have so much skill in Hunting as to wind an Horn, tho' that by no Law or Canon be forbidden to him. And therefore saith not, Corniat ipse, but Faciat corniare, let him cause an Horn to be blown, &c. I conceive the meaning to be, that the Bishops and Barons shall each of them take as they may; the Barons by Hunting (if they will) in their own Persons; the Bishops as they may, by the hands of their Officers and Servants. It is a common phrase in all old Charters, that the Bishops shall have Sac and Soc, Toll and Team, &c. i. e. cognisance of plea, suit of Court, toll, and such other customs: shall we intend, that he must take these in his own Person? No; it was not Henry the third's meaning, when he granted the Charter of the Forest, to break the Laws of the Church: for at the same time in Magna Charta ca. 1. he granteth, that the Church shall have Omnia jura sua integra & libertates suas illaesas; which could not possibly be, if by his Charter he changed the Canons of the Church, especially in matters of Do­ctrine and Conscience: as, when the Church teacheth that a Clerk may not [Page 115] be a Huntsman, for him to say that he shall be. Doubtless, if he would, the Clergy would not then accept it.

In the person of a Bishop there be three distinct Faculties: his Spiritual Function, wherein he is a Bishop; his Legal Ability, wherein he is a Lay-man and hath liberty to contract, &c. and his Temporal Dignity, wherein he is a Baron and Peer of the Realm, and participateth their priviledges. I could put cases wherein every of these may be seen severed from the other; but I should then wander from my matter. Only, I present them thus Anatomy'd, that it may appear what portion the Church had in them, what the Com­mon-wealth, and what the King; that so it may also the better appear how the Laws both of the Church and Kingdom are to be applyed unto them respectively.

When therefore the King granted Temporal lands unto them; tho' they took them as Lay-Barons, and in their Temporal Capacity, yet might they not otherwise use them than might stand with their Spiritual Function: no more than when he granted Ecclesiastical possessions to a Lay-man, the Grantee might otherwise use them than as a Lay-man. For example; it was a com­mon thing in old time, that the King granted Churches to Lay-men, by the name of Ecclesiam de Dale and Ecclesiam de Sale; yet it was never intended that the Grantee, tho' he had the Churches to order and dispose, should (con­trary to his Vocation) meddle with the Divine Service, but present his Clerk only. So in like manner, when the King granted to Clergy-men, Chaces, Parks, and Warrens; it was not intended that (contrary to the rules of their Profession and Laws of the Church) they should or might become Hunters and Foresters.

My long stay upon this point, is a preparative to an answer to the next, which is the Statute of Ric. II. being in the negative, ‘That no Priest nor other Clerk, not advanced to 10l. a year, shall have or keep any Grey­hound, nor other Dog to Hunt; nor they shall not use Ferrets, Hayes, Nets, Hare-pipes, nor Cords, nor other Engines, for to take and destroy Deer, Hares, nor Conies, &c. upon pain of one years imprisonment.’ The Statute (I say) is in the Negative, and saith that none under 10l. a year shall keep; but saith not in the Affirmative, That it shall be lawful for them that have 10l. a year to keep, &c. I should therefore think, that this Statute doth not discharge a Priest (having 10l. a year and using Hunting) against the Canon-Law: no more than the Statute of Ʋsury, forbidding a Man to take above 10l. loan for an 100l, giveth him liberty to take that 10l. or doth discharge him against the Canons of Ʋsury.

Touching his inference, that Linwood speaketh not one word against Hunt­ing simply by Clergy-men, but against their using it in places restrained; it is true, for the Text of the Canon led him no further; being only De Clerico, de Transgressione Forestae aut Parci alicujus diffamato, and made to no other in­tent than to aggravate the censure of the Ecclesiastical Law, which before was not sharp enough against Offenders in that kind. But Johannes de Athon (as great a Canonist and somewhat elder, whom Linwood often citeth and relyeth upon as one well understanding the Ecclesiastical Constitutions and the Laws of England) hath apparently condemned it in the place by me recited. Yet is it to be noted, that neither Athon nor Linwood intended to Gloss upon all the Constitutions of the Church of England; but Athon only upon those of Otho and Othobon; and Linwood (beginning where Athon left) upon those of Stephen Arch-bishop of Canterbury and his Successors. There are therefore a great number of Canons and Constitutions of the Church of England, which neither of these Canonists have either meddled with or so much as touched: as also there be many Statutes in force, which are no where mentioned in any of the Abridgements. But Jo. de Burgo (another English Canonist and Chancellour of Cambridge, who wrote in Richard the Second's time) taketh [Page 116] 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 1.

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 p [...]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 do [...]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 [Page 117] 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 [Page 118] 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 in [...]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 [...]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 2d. 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 1 Exercises of War, [Page 119] 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, 1used 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, the shooting here mentioned seemeth not to be the long-bowe, which stirreth the body and is profitable to health, but that deadly Engine (which imagineth mischief as a law) the Cross-bowe, whose force a man cannot mitigate as in other weapons, and is properly numbred amongst the instruments of War; and therefore by a multitude of Canons prohibited to Clergy-men, so that they may not use them 2 pro justitia exercenda (as appeareth by the Constit. of Othob. Tit.) de Clericis arma portan. nor equitantes per loca periculosa, as it is in the Gloss upon the Decret. of Gratian p. 992. where the Text is, Clerici arma por­tantes & usurarii excommunicentur. But I have gone the length of my tedder, I mean as far as the Apologie leadeth me; and therefore now ma­num de tabula.

The case of this Reverend and most Worthy Person deserveth great com­miseration and tender handling: for who can prevent such unexpected ca­sualties? Yet may the consequence prove so mischievous both to himself and those that are to receive their Consecration from him, as of necessity it must be carefully look'd into and provided for. Let me remember an ancient pre­cedent, even in one of his own Predecessors, Stigand, Arch-bishop of Canter­bury in the time of the Conquest, who, because he had not Canonically re­ceived his Consecration, but from the hands of Pope Benedict (who stood Excommunicate and sacris interdictus) was not only deprived himself by au­thority of a Council, but also the Bishops and Abbots which had taken their Consecration from him. Therefore the Bishops of Wells and Hereford fore­seeing that evil; to make all clear, fetch their Consecration at Rome from Pope Nicholas: Vitabant enim (saith Flor. Wigorn. in An. 1070.) 3 à Stigando qui tunc Archiepiscopatui Doroberniae praesidebat, ordinari: quia noverant illum non Canonice Pallium suscepisse. It is good to follow the counsel of Gratian in the like matter: Consultius est in hujusmodi dubio abstinere quam celebrare, ca. 24. 1716.

But because we are fallen into a case, wherein perhaps some extraordinary Consecration may be required; let me also relate a strange Consecration used in the entrance of the Reign of 4 Henry I. An. 1100. where Eadmere a Monk of Canterbury being elected by the Clergy and People of Scotland to be Bishop of St. Andrews, with the great good liking of King Alexander and the Nobility. Yet by reason of some discontentments the same King had con­ceived against the Arch-bishop of York, within whose Province Scotland then was, he would by no means agree that Eadmere should take his Consecration from that Arch-bishop; and after much consultation how then it might o­therwise be performed, it was at last agreed, that the Staff of the Bishoprick should be solemnly laid upon the Altar, and that Eadmere taking it from thence, should receive it as deliver'd him from God himself: which accord­ingly was done. This calleth to my mind another of like nature, somewhat [Page 120] more ancient: where Wulstan, the good Bishop of Worcester, both resigned his Bishoprick by laying the Staff thereof upon the shrine of St. Edward the Confessor (by the agreement of a Council holden under Lanfranc) and in like manner received the same again from thence, in the pre­sence of King William, the Arch-bishop Lanfranc, and many others; not without some miracle, as Matthew Paris writeth it in An. 1095. These as [...].

And thus, in this matter of Shooting, If I have done as the Proverb saith, Shot like a Gentleman, that is fair, tho far off, it sufficeth. I humbly crave pardon.

SOME Letters and Instruments, Concerning The killing of Hawkins by Arch-bishop ABBOT.

A Letter written by his Majesty to the Lord Keeper, the Bishops of Lon­don, Winton, Rochester, St. Davids, and Exeter, Sir Henry Hobart Kt. Chief Justice of the Common-Pleas, Mr. Justice Dodderidge, Sir Henry Martin, and Mr. Doctor Steward, or any six of them, whereof the Lord Keeper, the Bishops of London, Winton, and St. Davids, to be four.

IT is not unknown unto you what happened this last Summer unfortunately to our Right Trusty and our Right Well-beloved Counsellour the Lord Arch-bishop of Canterbury; who Shooting at a Deer with a Cross-bow in Bramsil-park, did with that shoot casually give the Keeper a wound, whereof he died. Which accident, tho it might have happened to any other man, yet because his Eminent Rank and Function in the Church, hath (as we are informed) ministred occasion of some doubts, as making the Case different in his Person, in respect of the Scandal (as is supposed:) We therefore being desirous (as it is fit We should) to be satisfied therein, and re­posing especial Trust in your Learning and Judgement; have made choice of you to inform Ʋs concerning the nature of this Case: And do therefore require you to take it presently into your consideration, and the Scandal that may have risen thereupon: And to certify Ʋs, what in your Judgements the same may amount unto, either to an Irregularity or otherwise. And lastly, what means may be found to redress the same (if need be) of all which points We shall expect to hear your Reports, with what diligence and expedition you possibly may. Dated at Theobalds 3. Oct. 1621.

A Letter from the Lord Keeper to Arch-bishop Abbot, inti­mating the Reception of his Majesty's Letter.

May it please your Grace.

MY Lord of Winchester, my Lord Hobart, Sir John Dodderidge, Dr. Mar­tin, and my self, having met this afternoon about a Letter sent unto us (to­gether with some others) under his Majesty's Signet; and finding the Contents thereof to require from us some information of the nature of an unfortunate Act, which doth referr unto your Grace: We thought our selves ty'd in all justice and respect, to send your Grace (as I do here inclosed) a copy of his Majesty's Letter: And to let your Grace understand, that we are ready to receive from your Grace (in writing) all the qualifying circumstance, of the Fact (if any such there be) omitted in this Letter; that we may be better grounded to deliver our Opinions (as is desired) concerning the nature of this unlucky accident. And we have appointed two of the clock in the afternoon upon Saturday next, to be the time; and this Colledge of Westminster, to be the place of our meeting, to receive what information of the Fact, your Grace shall [Page 122] [...] unto us, And ceasing to be further troublesome, I shall [...]

Your Grace's poor Friend
and Servant
Jo. Lane. & C. S.

The Arch-bishop's Answer.

My very good Lords,

I Thank you for sending me the Copy of his Majesty's Letter, which concerneth the [...]nhappy [...] that befell me in Hampshire. I here inclosed send unto your [...] a [...]opy of the Verdict given up by the Jurors unto the Coroner: as also a [...] of some circumstances of this Fact, which are not expressed in that Verdict. [...] the first▪ being already upon Oath, it needeth not (as I conceive, under your Lor [...]s [...] (favour) any further verification: And for the other, such of the parti­cular [...] a [...] are not included in the Verdict, there are in readiness those who will te­sti [...]i [...] the [...]ame. And for the better expedition of the whole business, if your [...] all on [...] [...] what are the special points in Law to be insisted upon; I will, [...] [...]ll, [...] sp [...], cause my Council to be ready to attend you: by whom I desire to give your Lordships satisfaction. And so commending my Love and Service to your Lordships, and forbearing to be further troublesome, I rest

Your Lordships very loving Friend
G. Cant.

A Note of my Lord Keepers at the bottom of the Letter.

‘To this Letter we answered, that we had no Warrant to hear Counsel; no [...] could we in justice hear any, unless the credit of the Church and honour of the King, had their Council likewise on the other side.’

Jo. Linc. & C. S.

The opinion of the Bishops and others to whom the consi­deration of Arch-bishop Abbot▪s Case was referred; in a Letter to his Majesty.

May [...]t please your Majesty.

WHereas we receiv'd a command from your Majesty under your Royal [...] to deliver our opinions unto your Majesty, whether an Irregularity or [...] might ar [...]se by this unfortunate Act, which God permitted to come to pass by [...]h [...] [...]and of the most Reverend Father in God the Lord Arch-bishop of Canter­bury, [...]ooting in a Cross-bowe at a Deer in Bramsil-park; as also of the cure and [...] the same Irregularity, in case it should be so adjudgd. [...] do in all [...] humility return this account unto your Majesty:

[...] the first,

[...] be contracted by this Act, in the person of my Lord [...] gr [...]ater part of our number could assent or agree: Because [...] and [...] themselves are so general and so ready to entertain distin­ctions [Page 123] and limitations, the Doctors and Glosses so differing, inferences and disputes so peculiar to every man's conceit and apprehension, authorities of Canonists and Ca­suists so opposite in this very Case in hand; that we could not return unto your Ma­jesty any unanimous resolution or opinion in the same.

For the second,

Whether any Scandal may arise out of this Act? We are of opinion, a Scandal may be taken by the weak at home and the malitious abroad; tho' most of us believe there was no Scandal given by the said Right Reverend Father.

For the third,

We are all agreed, not only that a Restitution or Dispensation may be granted by your Majesty, either immediately under the Great Seal, or (which most of us in all humility represent unto your Majesty) by the hands of some Clergy-men, Delegated by your Majesty for that purpose, or what other way your Majesty shall be pleas'd to extend that favour. But withal, we are of opinion, that it is most sitting for the said Reverend Father, both in regard of his Person and the honour of the Church, to sue unto your most Gracious Majesty for the said Dispensation in majorem caute­lam, si qua forte sit Irregularitas. All which, craving pardon for our weakness, we do in all humbleness submit to the decision of your Majesties most profound and incomparable Wisdom.

Jo. Linc. elect. C. S.
Geo. London.—La. Winton.—Jo. Roffens.
Guil. Menevens. elect.—Valen. Exon. elect.
Henr. Hobart.
Jo. Doddridge. H. Marten. Ny. Stywarde.


REverendissimo in Christo Patri Georgio Providentia Divina Cantuariensi Archiepiscopo, totius Angliae Primati & Metropolitano, Johannes Lincoln. Georgius London. Lancelotus Winton. Samuel Norwicens. Thomas Coven. & Lich. Arthurus Bathon. & Wellen. Nicolaus Eliensis & Georgius Cice­strensis permissione divina respective Episcopi de Provincia Cantuar. Salutem & gra­tiam in Domino sempiternam. Recipimus Literas Commissionales à Serenissimo in Christo Principe ac Domino nostro domino Jacobo Dei gratia Angliae, Scotiae, Franciae & Hiberniae Rege, fidei defensore, &c. sub magno sigillo Angliae confectas & nobis directas; quarum tenor sequitur in haec verba: ‘Jacobus Dei gratia Angliae, Scotiae, Franciae, & Hiberniae Rex, fidei defensor, &c. Reverendo in Christo Patri & perdilecto & perquam fideli Consiliario nostro Johanni Episcopo Lin­coln. Custodi magni sigilli nostri Angliae, ac Reverendo in Christo Patri Geor­gio Episcopo London. ac Reverendo in Christo Patri ac perdilecto & perquam fideli Consiliario nostro Lanceloto Episcopo Winton. necnon Reverendis in Christo patribus Samueli Norwicen. Thomae Coven. & Lichen. Nicholao Elien. Ar­thuro Bathon. & Wellen. & Georgio Cicestren. respective Episcopis▪ Salutem & gratiam.’

‘Humili nobis supplicatione exposuit Reverendissimus in Christo Pater, perdilectus & per fidelis Consiliarius noster Georgius Cantuar. Archiepiscopus, quod cum nuper in parco quodam vocato Bramzil-park apud Bramzil in Comitatu nostro Southamton. per honorandum virum ejusdem parci dominum rogatus & invitatus damam sagitta figere destinaret, debita adhibita diligentia ne quid inde periculi cuiquam eveniret; forte tamen accidit ut sagitta ab eo emissa & in feram directa, in quendam Petrum Hawkins adhunc Parci praedicti Custodem, improvide & temere se periculo ictus sagittae exponentem, & per locum ubi a praefato Archiepiscopo conspici non potuit cum imp [...]tu transcurrentem incideret, eique brachiam sauciaret; ex quo quidem vuln [...]re▪ [...]ra unius horae spacium expiraba [...]: & quamvis propter hujusmodi homi­cidium casuale, nulla praefati Archiepiscopi culpa sed ipsius occisi temeritate conti­g [...]ns, idem Reverendissimus Pater bona fretus conscientia, se nullam omnino irre­gularitatem incurrisse, persuasissimum habeat; provida tamen animi circumspec [...]ione, & ut omnis infirmorum mentibus scrupulus eximatur, secum a nobis super omni & omnimoda irregularitate & irregularitatis nota aut suspicione, si quam praemissorum ratione contraxisse forsitan aliquibus videri possit, ad cautelam & ex superabun­danti dispensari humiliter supplicavit: Sciatis igitur quod nos petitionis hujusmodi vim & [...]fficaciam reg [...]o animo & pro affectu ponderantes, & de veritate praemis­sorum solicita indagatione certiores facti, & ut piam Reverendissimi Patris inten­tion [...]m [...]ac in re s [...]quamur, & ad abundatiorem cautelam, persidelis Consiliarii nostri [...] [...]ue de E [...]cl [...]si [...] & Republica m [...]r [...]i Prae [...]ulis statum, famam, & dignitatem, [Page 125] nostri etiam patrocinii minime teneri & firmare dignoscamur, ad praesentem veni­mus dispositionem: Vobisque vel aliquibus sex vestrum, quorum vos praefat. Jo­hannem Lincoln. Georgium London. Lancelotum Winton. & Samuelem Nor­wicen. respective Episcopos, quatuor esse volumus, de quorum etiam side, judicio, & industria plurimum confidimus, mandamus & de gratia nostra speciali & ex au­ctoritate nostra regia suprema & Ecclesiastica qua fungimur, pro nobis, haeredibus, & successoribus nostris damus & plenam concedimus facultatem & potestatem per praesentes, quatenus vos vel aliqui sex vestrum; quorum vos praefatos, Johannem Lincoln. Georgium London. Lancelotum Winton. & Samuelem Norwicen. respective Episcopos, quatuor esse volumus, cum praefato Reverendissimo Patre super omni & omnimod. juris vel facti defectu, censura, sive poena aliqua Canonica & Ecclesiastica, praesertim vero Irregularitate omni seu Irregularitatis nota (si quae forsitan ratione praemissorum contracta fuit) vel quibusdam contracta esse videan­tur, utque in susceptis Ordinibus & Jurisdictionibus secundum concreditam sibi ra­tione Ordinis & Archiepiscopatus sui potestatem libere ministrare, frui, exercere, & gaudere valeat, ad majorem cautelam dispensetis, ac caetera omnia & singula quae ad statum, commodum, & honorem praefati Reverendissimi Patris conservan­dum & corroborandum in hoc parte necessaria fuerint seu quomodolibet opportuna fa­ciatis, & dispensationem hujusmodi, caeteraque sic ut praefertur per vos aut aliquos sex vestrum, quorum vos praefatas, Johannem Lincoln. Georgium London. Lan­celotum Winton. & Samuelem Norwicen. respective Episcopos, quatuor esse vo­lumus, facienda in debita juris forma concepta, & inscripta, reducta, sigillisque vestris seu sigillo aliquo authentico munita, praefato Archiopiscopo tradere non diffe­ratis. Quam quidem Dispensationem, caeteraque sic ut praefertur per vos aut ali­quos sex vestrum, quorum vos praefatos, Johannem Lincoln. Georgium London. Lancelotum Winton. & Samuelem Norwicen. respective Episcopos, quatuor esse volumus, pagenda sub magno insuper sigillo nostro Angliae confirmari volumus, & super hiis praefati magni sigilli nostri Custodi aliisque Cancellariae nostrae ministris quibuscunque expresse mandamus, & plenam tenore praesentium concedimus pote­statem. Teste meipso apud Westmon. vicesimo secundo die Novembris, Anno regni nostri Angliae, Franciae, & Hiberniae, decimo nono & Scotiae LV. Secundum tenorem & exigentiam Literarum Commissionalium praerecitatarum, & ad eximendum omnem scrupulum ab infirmorum mentibus, si quis forsitan sit aut fuerit in ea parte conceptus. Nos praedicti, Johannes Lincoln. Georgius London. Lancelotus Winton. Samuel Norwicen. Thomas Coven. & Lichfeld. Arthurus Bathon. & Wellen. Richardus Elien. & Georgius Cicestrens. respective Episcopi, nomine pri­mitus invocato ac Deum patrem oculis solum habentes, & considerantes atque pro certo habentes quod dicta venatio cui per te data erat opera, quando dictum casuale homicidium (te nihil tale suspicante) accidebat, erat modesta, decens, & quieta, & quod debita per se adhibita erat diligentia in dicta venatione ad praecavendum ne quid periculi alicui inde eveniret, Tecum praefato Georgio Archiepiscopo Can­tuariensi super omni Irregularitate & Irregularitatis nota, si quam forsitan ratione casualis homicidii sive mortis praefati Petri Hawkins incurristi vel aliquibus incur­risse videaris ad omnem & qualemcunque juris effectum dispensamus; teque prae­fatum Georgium Archiepiscopum Cantuariensem ac personam tuam ab omnibus & singulis inhabilitatibus, suspensionibus, irregularitatibus, aliisque poenis, impedi­mentis, censuris, & coercionibus quibuscunque Ecclesiasticis sive Canonicis (si quam forsitan ratione praemissorum aut eorum alicujus incurristi aut aliquibus incurrisse videaris) ad omnem & qualemcunque juris effectum liberamus ac tenore praesentium pro liberato haberi decernimus & pronunciamus: quemque defectum, labem, no­tam, sive maculam, (si quam forsitan ratione praemissorum aut eorum alicujus con­traxisti aut aliquibus contraxisse videaris, penitus abolemus ac pro abolitis haberi decernimus & pronunciamus: Teque etiam praefatum Georgium Archiepiscopum Cantuariensem ex superabundanti & ad majorem cautelam, rehabilitamus & resti­tuimus ad omnem & qualemcunque juris effectum: Et ut in susceptis Ordinibus & Archiepiscopatu praedicto, ac in omnibus & singulis jurisdictionibus, privilegiis, [Page 126] praeeminentiis, praerogativis, dignitatibus, alque aliis rebus quibuscunque, aliqu [...] modo ad dictum Archiepiscopatum spectantibus & pertinentibus libere ministrare valeas, concedimus & indulgemus, perinde ac si praedictum casuale homicidium com­missum non fuisset; Canonibus, Legibus, Decretis, Ordinationibus, & Constitutioni­bus Ecclesiasticis quibuscunque contrariis (si quae sint in ca parte contraria) in aliquo non obstantibus. In cujus rei testimonium, sigilla nostra Episcopalia hisce praesentibus apponi fecimus. Dat. duodecimo die Decembris, Anno Domini millesimo sexcentesimo vicesimo primo.

Of the ORIGINAL OF TESTAMENTS and WILLS, 17. June 1633.And of their PROBATE, To whom it anciently belong'd.

THE word Testament or any other for a last Will, is not found in all the Scripture before Christ's time. And tho' it be common in the vulgar Translation, yet St. Jerome noteth, that it is according to the Hebrew to signify Pa­ctum or F [...]dus, and so the Geneva Translation expresseth it.

Altho' therefore there be many passages in the Old Te­stament which seem to be meant of Wills, and so ex­pounded by Interpreters: As where it is said that Achitophel 1 put his house in order and hanged himself. And where Hezekiah 2is commanded from God to put his house in order for he should die. Yet there ap­peareth no Law nor form of Wills; and the declarations that Jacob, Moses, Joshua, David, &c. made at the times of their death were matter of consola­tion and counsel, effata novissima or ultima elogia 3, but not Testaments as we use the word.

Sigonius in his book of Jewish Antiquities maketh no mention of their Wills, nor do I yet find any in Josephus. It is true, that S. Paul maketh ex­press mention of them, but not till the Romans had conquer'd the Jews, and imposed their Law upon them. Then S. Paul speaketh of them according to the Roman Law, not Judaical. Of all this I desire further advertisement.

It is observed that the ancient Greeks, who (as Josephus testifieth) fetch'd their Laws from the Jews, had not any.

Tacitus reporteth of the Germans in his time, which was about 80. years after Christ, Successores sui cuique liberi & nullum testamentum. Si liberi non sunt, proximus gradus in possessione, fratres, patruus, avunculus with their descen­dants according to our Law.

It is therefore very probable, that our Saxon Ancestors, coming out of Germany, observed for a long time the custom of their Country, and that they had not the use of making Wills; as neither had their brethren the Normans.

The custom therefore of making Wills among the German and Northern Nations was taken up by little and little from the Romans in some places af­ter one manner, in some after another, as it is to be seen in France it self.

When the Roman Emperors grew potent in Germany, and the German Princes came to be Emperors, the Germans generally forsook their ancient custom spoken of by Tacitus, and received the Roman Law.

The rest of the Angli that remained in Germany and came not over into England, made a Law 4about the year of our Lord 900. That it should be lawful for a Free-man to dispose his inheritance by Will as he pleased. 2 Sam. 17. 23.

[Page 128] The Normans kept the old custom 1in part, and left it in the other part. They suffered him that had neither wife nor children (if he were twenty year old) to make a Will and bequeath his moveable goods as he listed, either to or from his kindred. So likewise if he 2were married and his wife dead.

Having children 3he could dispose but of a third part. And so might man or woman of 16. years old. But land which they (according to the Civilians) called immoveable goods, no man *amongst them might dispose of by his Will.

In some other parts of France 4as in Champain, they disposed both move­able and immoveable, that is, goods and lands, according to the Civil Law.

The Civil Law custom they called Lex Romana, the other Lex Barbara.

Our Saxon Ancestors by direction of their Clergy, who chiefly affected the Roman manners, seem also to have observed the Civil Law in making of Wills both in substance for disposing Lands and Goods, and much in the form and ceremony of making and publishing the same.

As Carolus Magnus 5in France disposed the Lands of his great dominions between his three sons, Lewis, Pepin, and Charles, by his last Will. So by his example King Ethelwulfus 6here divided his Lands by his Will between his three sons, Aethelbald, Aethelred, and Aelfred.

King Aelfred 7in the like manner disposed both his Lands and Goods by his Will now extant. And many other Saxons 8by their Wills in writing, bequeathed Lands and Goods with their Bodies unto Monasteries. That herein they followed the Civil Law is manifest by the Saxon Will of Bir­trick 9and Elf [...]uith his wife, made about the year 980. (according to the man­ner of that time) by them both jointly.

First it seemeth to be made in calatis Comitiis 10, that is, in an assembly called together for that purpose. Then whereas the Civil Law 11requireth necessarily VII. witnesses, here were a dozen, least it might be defective in that one was a woman, and 12some other under age or Bond-men.

The disposition of Lands as well as of Goods, is by the Civil Law, and therefore the course is more solemn. Which also this well observeth both for disposing Land and Goods and also for the solemnity of the course. But most evidently it appeareth to be according to the Civil Law, in that the man and his wife joyn both together in it, which was neither in use nor re­solv'd to be good till the Novel Constitution 13of Theodosius and Valentinian did authorise it.

After this Constitution that kind of Testament became so common, that Marculfus 14, who lived about the year 660. hath left unto us an especial formula or precedent of it as it was then in use in France. And saith in it, that it was ut Romanae Legis decrevit authoritas. And concludeth it with an imprecation or curse against such as should violate it, as doth also the Will of Birtrick.

With the like solemnity of witnesses (eight in number besides a Lady) did Elfere another Saxon before Birtrick, bequeath the Town or Land of Snodland to the Church of S. Andrews.

Of the Probate of Wills or Testaments.

After the Will was thus composed, the Roman use 15was to have the Te­stator and Witnesses to subscribe it, then binding it up close with thred, to [Page 129] seal it with their Seals, which upon producing of it they or many of them were to view and acknowledge before the Praetor or Judge. And then 1 rupto lino the thred being cut, it was opened and published, and copies of it delivered to the parties under a Publick Seal, the Original remaining in the publick Register.

The ancient manner of opening, publishing, or as we call it, proving of Wills before the Magister Census, is described by 2 John Fabri. But nearer to our purpose is that in the Formulae of Marculfus 3of a Will proved in a City or Corporation before the Magistrate there, or of a Town before the De­fensor Plebis.

For a Will by the Civil Law and the use of our neighbour Nations, might be proved before divers Officers and in divers places.

We already mentioned the Praetor, but 4 Justiman the Emperor ordained that in Rome none should be opened save by the Magister Census. In the Provinces by a Constitution of Theodosius, 5the Rectores Provinciarum, and where the access to them was uneasy, there Donations and Wills made in Cities and Corporations might be exhibited and proved before Magistratus Municipales the Magistrates there; in other Towns before the Defensor Plebis. According to these two last are the formulae of Marculfus and another in Brissonius.

From these Constitutions of the Emperors, grew the various manner of Probate of Wills amongst us in ancient time.

With the Magister Census being proper only to the City of Rome we have nothing to do. But as we were once a Province of the Empire, so our An­cestors received and held the manner of Provinces. For the Rectores Pro­vinciarum, which with us were the Earls of the Counties, had the cognisance or Probation of Wills as shall by and by appear. So also had divers of our Magistratus Municipales, Magistrates of Cities and Corporations: As that which I am best acquainted with my Neighbours of Lenn Episcopi, now Kings Lynn in Norfolk. And instead of the Defensores Plebis in an ordinary Town, the Lord of the Town or Mannor both had, and hath that priviledge with us in divers places.

All this while there is no mention of any Ecclesiastical Person, which we must now look into.

The fourth Council 6of Carthage ordained, that Episcopus tuitionem testa­mentorum non suscipiat, and this Canon Gratian has taken into the Body of the Canon Law, whereto the Gloss saith: Tuitionem, id est, apertionem, sc. co­ram eo non apperiantur, sed coram Magistro Census. C. de testam. L. Consulta. And tho' it addeth vel dicatur quod non sit advocatus ad tuendum testamentum, yet that seemeth an idle interpretation: for tho' Epiphanius maketh mention that Bishops in old time judged Causes, yet it was never known that they pleaded Causes. But it is apparent, that the Clergy-men in those days took upon them to prove Wills even in Justinian's time, who flourished An. Dom. 530. And therefore he prohibited 7them not only by a Constitution, but also by a mulct of 50. pound weight of Gold, saying Absurdum est namque si promiscuis actibus rerum turbentur officia, & alii creditum alius subtrahat; ac prae­cipue 8 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 [Page 130] 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.

Re [...]ardus King of the Western Goths about the year 594. tho' he 1re­tained 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 succ [...]ssor Chindavin [...]us about An. 650. making a Law about a Military Will ordained, 2that 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 3was that Tout testament doit estre passe par devant le Curè, ou Vicaire, notaire ou tabellion en la presence de daux te­motn [...]s idoines d [...] XX. ans accomplis & non legataires. That all Testaments shall pass before the Curate or Vicar, &c. where the Commentary 4noteth, 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.

Elf [...]re who lived before the year 960. having made his Will 5, 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 6 their Will at Me­pham before Elfstane Bishop of Rochester, Wine the Priest, and divers other. See a MS. Law 7 of King Alured the Great, who flourished An. 880. De eo qu [...] terram testam [...]ntalem habet, quam ei par [...]ntes sui dimiserunt: ponimus ne illam extra cognationem suam [...]ttere possit, si scriptum intersit testamenti, & testes quod [...]orum prohibitto fuerit, qui ha [...]c imprimis acquisiverint & ipsorum qui dederint ei n [...] hoc possit, & hoc in Regis & Episcopi testimonio recitetur coram parentela sua.

It is said in the Civil Law 8that 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 9is on Cyninges & bisceopes geƿitnysse, in R [...]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 [Page 131] extent of the Earl's County and the Bishop's Diocess had but one limit.

To this purpose is the Law 1 of King Edgar Cap. 5. and the like of Ca­nutus 2 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, & ðære beon ðære 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 3there 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 4 of his then granted to Remigius Bishop of Lincoln, Ʋt 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 to the wife, a third part to the heir (or children) and a third part the husband might dispose by his Will. The Norman manner appeareth at large by their Custumary, and the English at that time briefly toucht by Glanvil 5.

But let the Will and the matter thereof be what it would. It seemeth the Insinuation, Probate, and Cognisance of it, belonged generally now unto the Bishop and Clergy, tho' I must confess it be hard to find manifest proof thereof in those ancient days of the Conqueror and his Sons.

We must therefore discover as we can, and very material (in my under­standing) to that purpose is the testimony which I find in the ancient Laws 6of Scotland, compos'd by the commandment of David their King, who lived long in the time of King Henry I. Son of the Conqueror, and of King Stephen the Conqueror Grand-child. For those Laws have that similitude with ours of that time delivered by Glanvil, as that in effect they be much what the same, mutatis mutandis, &c. and very often totidem verbis with Glanvil.

[Page 132] It is there said under the title De causis ad Ecclesiam spectantibus, &c. Pla­ [...]tum de dotibus, & de testamentis ad forum Ecclesiasticum pertinet. Dower was then thought to belong to the Ecclesiastical Court, because it was a depen­dency of Marriages, which doth belong to that Court. And the Rule was, Qui est Judex in principali est Judex in acc [...]ssorio. But to our purpose it is plain, that Testaments were then de [...]ure Ecclesiastico in Scotland, and doubtless even then also in England.

For not long after (in Henry II's time) Glanvil 1himself doth testifie as much, saying, that where the Testator nameth no Executor, his next of kin possunt se ad hoc faciendum ingerere, and might have a Writt to the Sheriff (in the form there recited) against them, that detained any of the Goods: and then addeth, si quis autem Auctoritate hujus Brevis conventus dixerit contra Testa­mentum, soil. quod non suit rationabiliter factum, vel quod res petita non fuerit, ita ut dicitur legata, tun [...] quidem placitum illud in Curia Christianitatis audiri debet & terminari, &c.

At this time Ecclesiastical Jurisdiction was grown to that exorbitant height and latitude, that they neither doubted to convent the King himself to their Synod, as Henry Bishop of Winchester and Legate did King Stephen to the Synod of Winchester, nor to put him to corporal punishment under the name of pennance, as the Monks of Canterbury did King Henry II. by whipping him. In ordinary matters therefore, no doubt but they extended their jurisdiction very far. Yet all this while was not the decretum Gratiani come into the World.

In Henry III. time, Bracton expresseth Wills and Testaments to belong to the Ecclesiastical Jurisdiction, as Glanvil had done before in Henry II. and the Scottish Laws in Henry I. time. Si de testamento oriatur contentio in foro Ec­clesiastico debet placitum terminari, quia de causa testamentaria (sicut nec de causa matrimoniali) Curia Regis non se intromittit, &c.

I am now come to the lists of the modern Common Law, and I dare ven­ter no further.


ICENIA: SIVE NORFOLCIAE Descriptio Topographica.



Icenorum nomina. ICeni nostri, quibus nixi sunt initiis, & unde nomen ascive­rint; nec proditum reor à veteribus, nec rimatum feliciter à recentioribus. Caesar (hospes) Cenimagnos vocat: Pto­lemaeus (altero velut orbe dissitus) Simenos: Tacitus, Prae­fecti Britanniae gener, & diuturnus in Gallia Belgica ma­gistratus, certiusque igitur insequendus, Icenos. Mitto, qui Tigenos; sine dubio perperam.

Icenorum derivatio. Non à Rege aliquo nuncupatos, cum Camdeno censeo: sed nec ut ille à forma loci, quam Britanni (inquit) Iken, id est, cuneum vocant. Certe Ptolo­maei tabula & comperta ratio, quadrangulam potius justam, quam cuneatam faciunt. Mallem ego ab Ise fluvio celeberrimo, Britannis Ichen, totam re­gionem brachiis longe divaricatis transeuntem, deducendos. Sic apud Asia­ticos, Indi ab Indo; apud Graecos, Maeones à Maeonia; apud Scythas, Alani ab Alano; apud Germanos, Alsati ab Alsa; apud Gallos, Sequani à Sequana, fluminibus. Sic in ipsa Anglia, Derbienses á Derwent; Lancastrenses à Lan, alias Lon fluvio, ut ipse agnoscit Camdenus 1noster; Northumbrenses ab Humbro; & Wiltoniae Comitatus à Guillo, i. e. Willo fluvio, ut perhibet Wi­gorniensis. Nec obest (s) in (c) migratio, cum in voce conservetur sonus, & Ptolemaeo litera, quam alii tamen in (g) mutant. Soliti autem sunt Bri­tanni pro Graeco σ, ch. ponere, ut Ichen pro [...], Soch pro [...], i. e. sue, Buch pro [...] i. e. bove.

Ise fluvius unde dictus. Fluvii nomen ab Ise, alias Iside, gentium Dea, sortitum videatur. Priscis, quippe in more fuit, sylvas, montes, fluvios Numinibus consecrare, eorum­que appellare nominibus. Britannos vero prae Diis aliis Cererem & Proserpi­nam, (quae & Isis dicitur) inferna coluisse numina Strabo perhibet. Hinc infernales sui ritus, & nocturna sacra. Nox diem ducit; & per noctes, die­rum seriem; per lunas, mensium; per hyemes, annorum numerant. Sic ho­die à Seven-night pro VII. diebus; à Fort-night, quasi fourteen-night, pro XIV. diebus dicimus. Et majores nostri XX. XXX. Xl. Winters, pro totidem annis recitabant. Hyemem autem ideo consecrabant infernalibus, quod rerum se­mina sub hoc tempore ab eisdem existimabant conservari. Hinc & in fluviis nostris celeberrimis, crebrum Isis nomen, alias caelibis, ut Brigantum Isis; Isis Icenorum; & Isis Dobunorum: alias conjugis, ut Tham-isis, Is-urium, & hu­jusmodi.

Iceniae termini Sed Iceniae videamus terminos; quibus includit Camdenus Norfolciam, Suf­folciam, Cantabrigiae Comitatum, & Huntingtoniae. Quod ut non probetur facile, ita sat difficile est ad refellendum. Ptolemaeus Simenos ponit inter Catieuch­lanos & Metarim aestum, versus Boream; Trinobantes versus Austrum; Dobunos & Coritanos versus Occidentem; & Germanicum Oceanum versus Orientem. Sed quibus hi destituuntur invicem finibus, non exponit. Camdenus Coritanos locat, ubi Ptolemaeus inversis sedibus Catieuchlanos; mediterraneos scil. ubi hic maritimos, & è contra. Auctorem non laudat; propter viri tamen emi­nentiam inficias non ibo; ne crassa versans caligine, falsis illudar imaginibus. Haud tamen censeam priscos illos Britanniae populos adeo certis & definitis limitibus disterminatos, cum Scriptores Antiqui tractum potius quo versati sunt obscuriores populi, quam tractuum limites designaverint. Et qui fieri [Page 136] possit, ut hod [...]rnis Comitatuum finibus dividerent [...] olim B [...]anni veteres, cum Comitatus ipsi a Saxonibus postea, & plerunque ab Aluredo non ultra [...] anni [...], dim [...]tati sint? Reor equidem priscarum gentium terminos, [...] barbararum, instar magni aestuarii, nunc expansiores fuisse, nunc contractio [...], juxta potentiam & deliquium suorum Principum. Sic Londi­num ipsum, tot [...]s Insulae Metropolin, alias a veteribus in Essexia, alias in Middl [...]s [...]xia vidimus collocatam.

Eversa Britannia, divisaque a victoribus Romanis in quinque ditiones citra vallum quod instituit Hadrianus, restituitque postmodum Severus Imperator (sell. in Britanniam primam, Britanniam secundam, [...]laviam Caesariensem, Valentiam, & maximam Caesariensem) cessit Icenorum hic tractus (ut Cam­deno pla [...]ui [...]) in [...]laviam Caesariensem. Celebre vero Antiquitatis monu­mentum, quod Notitia utriusque Imp [...]rii nuncupatur, in—Vi [...]ariorum Bri­tanniarum Insulam ponens; Britanniam secundam locat (consulto dixeris, an fortu [...]o) ubi Ptolemaeus Trinobantes & Simenos.

Sed ejectis tandem Britannis, cum reliquiis Romanorum, descendit Flaviae nomen, pariter & Iceniae ad inferos, vocaturque a Saxonibus tractus iste East-Angle i. Anglia Orientalis, quod gens Anglorum cum Saxonibus e Ger­mania venientium, suam hic obtinuislent sedem, parte alia circa Humbrum incolente. Quibus tamen limitibus claudebatur, cum nec adhuc in Comitatus distincta [...]sset insula, satis videatur ambigendum, dimensionem licet satis ha­beamus explicatam. In antiquissima enim descriptione omnium praediarum, ex Australi parte Humbri fluminis, East-Engl perhibetur 30000. hidas de­metiri. Hidam Beda familiam vocat, & vulgus alias pro 100. & 120. acris terrae aestimavit. Nec semper tamen definite; sed Normanni postea caru­ [...]atam appellarunt, Scriptores medii seculi coloniam, & Romani olim villam rusticam.

Cum [...]o Aluredus, Rex (sine invidia dixerim) inter Principes optimos laudatissimus, Angliam totam ad priscam Germanorum politiam in Shiras, quas plerique Comitatus; Centurias (quas hundreda jam & wapentachia) & Decanias (quas Fri [...]ergas vulgo & Tithingas appellamus) divisisset; conclu­ditur East-Anglorum ditio trium Shirarum extensione, Norfolciae, Suffolciae, & Cantabrigiae. Non dico, Comitatuum, quod ad unum omnes sub hoc seculo pertinuer [...] Comitatum; siquidem ut ad unum Episcopatum. Comitatus enim plures saepe obtinuit shiras, & iisdem quibus Episcopatus finiebatur ter­minis; quod Episcopus & Comes simul considentes, populo jus dicerent; hic humanum ille vero divinum.

Haec, pulsis Britannis, inter advenas Saxones conditio fuit; donec erectam in Monarchiam Aluredus, Angliam totam in certas portiones dissecuit; quae a facto, Shires hodie asque appellantur. Qua partitione, licet antiquos Bri­tannorum limites in quibusdam observasse non est dubium; in aliis tamen longius discessisse certum est. Ideoque—Sectiones Britannicis respondere non credendae sunt. Deposita autem controversia (ut certa nostro argumento s [...]na statuatu [...]) concedamus hodiernos Norfolciae, Suffolciae, Cantabrigiae, & Hun­tingtoniae tractus, Icenorum ambitu contineri.

Redacta heptarchia in Monarchiam, Canutus Magnus Angliae, Daniae, Norwegiae, aliarumque gentium Borealium Rex, Monarchiam hanc in Te­trarchiae speciem disposuit, viz. West-Saxoniae regimen, sibimet; East-Angliam (cujus duces Ʋlfkettelum patrem & Athelwardum filium in Essenduni praelio trucidavera [...] ▪ quaeque ja [...] Norsol [...]iam & Suffolciam complecti dicitur) Tur­killo Comiti; M [...]rciam seu partem Mediterraneam, Edrico principi perfido; & Northumbriam, Henrico designavit.

Sic sit East-Anglia, Anglo-dania; & cum novo populo novas suscipit leges, quae a conditoribus Dene-la [...], i. e. lex Danorum, appellatus. Prioribus igitur duabus (i. e. [...]est-Saxon-lag & Mereen-lag) accedens, jam tertia [...] con­stituit, [Page 137] è quibus cum Edvardus Confessor unam ex omnibus deduxisset, Com­munemque inde appellasset; Gulielmus I. à Danis & Norwegis oriundus, Dano­rum illam profundiorem & honestiorem aliis fuisse contendens, eam omnino suscitaverat, si vehementissimis Magnatum deprecationibus non fuisset re­moratus. Ab hoc vero tempore ita claruerunt Norfolcienses pietatis studio & splendidis ingeniis; ut hinc in legum scientia primas obtinentes, quolibet aevo, regni tribunalia scientissimis judicibus, subsellia argutissimis Juriscon­sultis ornarunt: illinc rerum coelestium ardore conciti plus minus jam 700. Ecclesias in hoc tractu, & ultro 70. coenobia (quot in simili spatio nusquam invenies) condiderunt. Vivit sat honeste ipsa plebecula; cujus tamen rusti­citatem famoso derisit carmine (quod aliquando vidimus) sub Johannis Re­gis exitu Monachus quidam Petroburgensis, sic exordiens:

1 Edictum exiit Augusto Caesare
Qui mittens nuncios jussit describere
Mundi provincias summo cum opere.

Erat vero tunc quidam familiaris ejus Norfolcianus, Jo. de S. Omero, cujus nominis familia in Well juxta Wisbech sedem habuit, & foemina haerede ad Beaupreos transiit. Ille monachi vesaniam indignatus, patrias edit vindi­cias, numeros reddens numeris, & rhythmos rhythmis: opusculum inscribit Norfolcianae descriptionis impugnationem. Sic inchoatur. Edictum fingitur factum à Caesare.

Sub Rege autem Johanne 2novas suscepisse periclitabatur Norfolcia & Suffolcia incolas. Has enim provincias ipse, ut dicebat, per Chartam suam Hugoni de Bones dederat, qui cum 60. millia armatorum in auxilium ejus com­parasset, una omnes à pelago sunt absorpti, & cadaver Hugonis cum mer­sorum multitudine tam foeminarum & infantium quam virorum, Gernemutae ejectum. Multitudo aërem ipsum inficiens morbum & pestem provinciali­bus intulit; quos ut viva statuerat extinguere, & sedes hic sibi perpetuas com­parare, voti quodammodo compos efficitur.

De Cael [...] & Solo. E quatuor his Regiunculis; mediterraneae sunt omnino Huntingtoniensis & Cantabrigiensis: maritimae, pro dimidio, Norfolcia & Suffolcia. Coelum omni­bus velut unum, mite satis & tenue; sed maritimis refrigerantius. Solum unicuique proprium; sed mediterrane is pinguius. Huntingtonia pascuis aptior; Cantabrigia Cereri; Suffolcia lacte scatet & caseo; Norfolcia vellere est no­bilior. Mediterraneae tantum ex humo vivunt. Maritimae autem, cum The­tim habent vicinam, penu praeterea illic funguntur ditissima. Huntingtonia, leviter montana est: Cantabrigia, tota campestris: Suffolcia, sylvis consita: Norfolcia, omnium particeps.

Singularum fines in paludibus coëunt; ubi commune omnibus flumen unum est, amplum, piscosum, & navigationi commodissimum. Ousam dicunt; sed corrupte (ut mihi videtur) pro Isidem. E paludibus damnum saepe omnes ferunt; lucrum tamen annuò non exiguum; praeter ingentem vim piscium & aquatilium. Fluvius iste mediterraneis multis regiunculis tanquam via lactea est; qua merces & alia vitae necessaria copiose inferunt & deferunt: ejusque in ostio, instar clavis, Lenna sedet. Aliud flumen celebre Huntingtonia non habet, nec Cantabrigia: habent vere tum Suffolcia; tum Norfolcia, quae & cae­teras, rivulorum multitudine, antecellit. Succedit proxima Suffolcia. Indigere videtur Cantabrigia; sed magis tamen Huntingtonia. Metallum nulla effodit, nec carbones: ne structiles quidem lapides; si non Norfolcia. Eliensis insula in paludibus sedet; contineturque sub Cantabrigiae appellatione.

[Page 138] Marslan­dia Marslandia (quae ex nomine cognoscitur, palustre solum) 30000. metit [...] jugera, inter VII. villas distributa. Aggere cingitur elatiori, ab Australi plaga recentium undarum impetum, à Boreali marinarum, cohibente. Eoum latus fortius rodit Isis fluvius; Occiduum, furens à Vulturno aestuarium. Incolis hinc perpetua formido & periculum; sed in aggere communis salus & fiducia. Singulas tamen villas singuli claudunt aggeres alii, ne submersa una pereant caetera. Bis sub nostra memoria generale passae sunt diluvium, Aquarum dulcium An. Dom. 15—; salsarum, An. 1613. qua (ut mihi inter alios regio diplomate designatos) pagensium juramento innotuit, damnum supra 42000. libras illatum esse. Aggerem quippe non ut alias trajecit pelagus; sed tran­siliit altius toto pede; quod ne indies faciat miraculo prohibetur & divina misericordia. 1Octogenis enim cubitis supra Britanniam intumescere aestus, Pythias Massiliensis auctor est. O bone Deus, qui mare nobis ut Israelitis olim, murum dedit in perpetuum suae bonitatis testimonium!

Solum hie omnino pingue, sed robustum: pascuis igitur atque pecore lae­tum, magis quam in Cerere. Fossis & elicibus quibus centum & undeni in­cumbunt latericii pontes & ponticuli vermiculatim dissectum; cum ad edu­cendum inimicum imb [...]em, tum ad inducendum expetitum. Fontem enim nullum habet neque rivulum: n [...] talpam alit nec soricam.

W [...]l [...]k [...]. W [...]lt [...]n [...]. W [...]lpole. In Marslandiae parte extima, versus Occidentem, sitae sunt, Walsoka, id est, immunitas juxta aggerem: Waltona, id est, villa ad aggerem: & Walpola, quod est, gurges prope aggerem, Wall enim à vallo ductum, aggerem significat, & per translationem, murum. Pertinebant olim priores duae ad Abbatem Ramesiensem. Waltona scilicet, ex dono Albredae viduae Eustachii de Scelleia sub Henrico I. Walpola vero ad Ecclesiam Eliensem, natalitiis clara S. Gode­rici heremitae, cujus vitam & miracula Parisiensis 2plurime decantavit.

T [...]ing­ton S Ma­ [...]ies. In viciniis jacent Terrington & St. Maries; hoc familiae Chervillorum qui de Capra-villa olim dicebantur, & pro crista capram emblema nominis detu­lere antiquum patrimonium. Sed defunctis nuper Henrico Cheruil Equite, & filia sua, in Cobbarum scribitur haereditatem. Illud Howardorum, qui hoc olim tractu maxime claruere, vetus sedes, & ad ingentia conservatrix felicis­sima. Splendida etiam hic Ecclesia cujus aliquando Rector Edmundus Gun­devill, Collegium sui nominis exstruxit Cantabrigiae sub An. Dom. 1348.

Tylney. Adjacet Tylney, veteris utique Tilneiorum familiae radix; quae per filiam & haeredem Frederici Tilney Equitis amplissimi, in Howardianam stirpem tertio hinc seculo confluens, auctiorem eam multo reddidit. Hic se expandit Tylney-Smeeth.insignis area, quae à planicie nuncupatur Tylney-Smeeth, pinguis adeo & luxu­rians ut Paduana pascua videatur superasse. Cum enim VII. villarum ma­jora animalia quotidie recipit compascentia; oves tamen praeterea plus minus 30000. alere perhibetur; nulla excedens extensione bis mille passus. Tuentur eum indigenae velut aras & focos, fabellamque recitant longa petitam vetu­state de Hikifrico (nescio quo) Haii illius instar in Scotorum Chronicis qui civium suorum dedignatus fuga, aratrum quod agebat, solvit; arreptoque temone furibundus insiliit in hostes, victoriamque ademit exultantibus. Sic cum de agri istius finibus acriter olim dimicatum esset inter fundi dominum & villarum incolas, nec valerent hi adversus eum consistere; cedentibus oc­currit Hikifrikus, axemque excutiens à curru quem agebat, eo vice gladii usus; rota, clypei; invasores repulit ad ipsos quibus nunc funguntur terminos. Ostendunt in coemiterio Tilniensi, sepulchrum sui pugilis, axem cum rota insculptum exhibens.

Wigen­hall. Nec procul Wigenhall, antiquae etiam cognomen stirpis. Magna hujus pars ante aliquot secula ita aquis opprimebatur, ut neglecta generaliter occupan­tibus permitteretur. Multi igitur sedes sibi illic elaborantes, totam pene in aridum redegerunt; metuentesque jam tum ejici, in obsequium potentiorum [Page 139] se tradidere, censum & tenuram patrocinii causa agnoscentes; ut antiqua re­fert Inquisitio.

Wise­beach. Extra aggeris partem illam, quam the Podike vocant, soil. inter Isidem flu­vium & municipium Eliensis Episcopi, quod à situ in Occidentali glarea Wisebeach dicitur (Wise enim Saxonice, ut in Wisegothorum nomine, Occidentale sonat) Well habetur, id est puteus. Cum enim circumclusa jam Marslandia, aquarum impediretur dilatatio, huc se recipientes ut in puteum, superficiem late opprimebant. Nobilissima fit interea piscatura, quam Ailwinus Dux East-Angliae, & totius Angliae Aldermannus, cognatus Regis Edgari, & Fun­dator Coenobii Ramesiensis (circiter An. Dom. 970.) eidem coenobio contulit, cum mansis & toftis piscatorum, (ut verbis utar 1Ramesiensis Codicis.) Mansit (ut videtur) sub eadem conditione, usque ad aetatem Regis Gulielmi I. qui Ecclesiae illi confirmans praedia, Concedo (2inquit) in Welles 20. homines piscatores, singulis annis 60. milliaria anguillarum (i. e. singulis Monachis singula milliaria) ibidem reddentes. Emersit postea in villam celebrem, partim in In­sula Eliensi, partim in Norfolcia (fluvio dividente) sitam; foro, nundinis, & uberrimis privilegiis sub Abbatibus Ramesiae honestatam, dimidiique hun­dredi fretam dignitate.

Beaupre­ovum Hic & Beau-preovum seu de Bello prato, sedes opulenta; praesertim cum ex­cisis Monasteriis Ramesiense hic dominium comparassent: quod cum reliquo suo patrimonio Edmundus Beaupre Dorotheae transtulit, quam ex Winteri ali­quando suscepit conjuge. Nuptaque ea viro insigni Roberto Bell, qui Capi­talis Baro Scaccarii effectus est, à nepote ex filio corundem Roberto Bell, splendidi ingenii Equite, possidetur.

Tydd Haud procul, in Lincolniensi tractu (nam confinia lambens, memorabile quod occurrit non praeteream) Tydd conspicitur. Vicus pauper, sed cujus aliquando Rector (quem Personam vocant) Nicolaus Breakespeare à Roma in Norwegiam missus, eam praedicando ad fidem convertit Christianam: & ab Eugenio [III.] Albanus ideo constitutus est Episcopus Cardinalis; crea­tusque est ipse post Eugenium [& Anastasium] An. Dom. 1154. Papa Hadri­anus IV. Consulum hic ademit potestatem; quae orbem olim, urbem hactenus administrasset; sibi retinens & successoribus. Copiosissime in hoc & palustri reliqua regione, [effoditur] fomes terrea; quae (à Torff, antiquo Rege Da­nico, ut ..... prodit inventore) torff, etiam hodie appellantur; & Latine Turbae à crassioris labii forensibus. Mallem vero à Sax. tyrf quod cespitem notat, (V. Gloss. nost.) ni inventorem à re inventa dictum opinatus fueris.

Isis [...]. Jam in Norfolciae continentem transeundus est undosus noster Plemmyrium, h. e. Isis fluvius; qui semper equidem non est transeundus. Cum enim in duobus aequinoctiis maxime tumeant marini aestus, & potissimum (ut Plinius notat) sub Autumnali plenilunio; hunc interdum è mari praevolat adeo in­sanus undae cumulus, qui se fluvii undis obviis non apponit, sed earum su­perficiem ita rapide superlabitur, ut velocitate equitantem superet, & furore quaelibet occurrentia mergat & evertat. Venientem fugiunt naviculae, & ipsa aquatica volatilia cum ingenti strepitu. Fluvii accolae hoc à feritate the Eagar nuncupant, Matthaeus Parisiensis (si recte intellexerim) Hygram: aliud reor quam Graecorum [...], sed non aliud quam undarum ingens cumulus, quem è lato collectum mari in angustias fluvii subdito detrudit aestus. In latiori enim ejus parte non ita saevit. Taceo copiosam fluvii piscaturam; de eo tamen dicam, ut de Pergusa lacu 2Ovidius

—Non illo plura Caister
Carmina cygnorum labentibus audit in undis.

Clacklose Cent. Trajecto Iside, in Centuriam Clacklose pervenitur; quae cum multis in ea­dem villis ad Ramesiense olim spectabat Monasterium; hodie ad amplissimum 3 Met. l. 5. [Page 140] Equitem Johannem Har [...]; velut unum illius Abbatiae coh [...]r [...]dum. Ad ponti [...] [...]transitum primum obest Downham-market, a montano sita nomen habens▪ doun en [...]m mons est, ham habitatio: sed in membranis Regiis Downeham-hithe, i. e. portus, appellatur. Mercatum illis antiquissimum; nam ab 1Edwardo Confessore confirmatum reperi. Aspicit prope in aequali situ Domini sui aedes [...]amplas & exim [...]as, annum circiter 15—. a Nicholao Hare, Jurisperito ad Stow-Bardolfe extructas, sed lat [...]fundiis [...]gregie ditatas beneficio Hugonis Hare, juris item peri [...]i & fratris Nicolai, qui coelebs excedens, 40000. lib. & eo amplius dicto Joanni ex Ricardo fratre pronepoti, & tantundem Hugo [...], Dommo Colera [...] in Hibernia ex Johanne fratre nepoti, testamento dedit; me in eodem supravisore inter alios descripto.

[...] Copiosissime in palustri hic tractu effodiuntur focales cespites, quos Turffs appellant, Danorum nobis beneficium. A Torfo enim ipsorum Rege (qui floruit 2 An. Dom.—) inventos referunt; nomenque tenuisse inventoris.

Sub [...]st Wallington, quod [...] Coningesbeis cum uxore transiit ad Franciscum Gaudy, Capitalem nuper Civilium Placitorum Justitiarium, qui congesta h [...] plurima dominia, nepti suae e filia Comiti Warwici desponsatae, trans­misit omnia. [...]iliam aut [...]m duxerat Gulielmus Hatton, Cancellarii [...] sorore nepos.

[...] Paulum hinc in Euro-notum ad paludum marginem, sita est West-Deerham villula, cunis memoranda Huberti Walter, filii Harvei Walter, & fratris Theo­baldi Walter, Hiberniae pincernae, a quo illustrissima Pincernarum familia ▪quam Butl [...]r vocant) & Ormondiae Comites (ut testatur 3Charta Fundationis Coenob [...] de Woney in Hibernia) originem ducunt. Hic Hubertus sub Ra­nulpho de Glanvilla, illustri illo totius Angliae Justitiario enutritus, evasit Archiepiscopus Cantuariae, Cancellarius Regis Ricardi I. Legatus papae Ce­lest [...]i [...]IV. & tot [...]us etiam Angliae Justitiarius. Miraberis tot in unum collatos Magistratus, praesertim si recte intellexeris quanti sub hoc seculo munus fuerit Justitiarii, potestate scil. omnes regni Magistratus, dignitate omnes superantis proceres. Post Regem, primus universam complectebatur solus rem judici­ariam; Officium Capitalis Justitiarii regii tribunalis, Capitalis Justitiarii Ci­vilium Placitorum, Capitalis Baronis Scaccarii, & in plerisque Magistri Pu­p [...]llorum. Disposuit de Thesauro Regis, & in regni arduis elato peragebat omnia supercilio. In absentia Regis (quae sub istis seculis crebro accidit) regni custos & Pro-rex salutatur. Tantos edidit villa haec obscura partus; qui tamen coactus est ab Innocentio IV. fasces istos seculares deponere, & aratro Christi totus indulgere. Ad cunarum vero decus, Coenobium in West-Deereham condidit: acceptique memor beneficii, instituit, ut pro anima Ra­nulphi de Glanvilla, patroni sui, preces hic perpetuo funderentur. Sed de­scriptis ab Henrico VIII. in fiscum Monasteriis, Thomas Deereham ut à nomine [...]edem compararet, anno 33. ejusdem Regis hoc mercatus est; possidetque ho­d [...]e post cr [...]bram haeredum mutationem, e quinto filio nepos ejus homonymus, Equ [...]s probus.

[...] Progredienti mox occurrit Ox [...]burgh, dictum (ut suspicor) pro Ouse-burgh, quod ad Isem fluvium, quem Ouse appellant, sit appositum. Sic Oxeforde, pro Ouse-forde. Nomen antiquitatem loquitur & eminentiam. Urbes enim quas Britanni [...]strias, Saxones nostri & German [...] Burghs vocant (ut & recte notat Littletonu [...] a [...], pro turri. Haud tamen aio, Burgos apud nos omnes, [...]sse ol [...] urbes: nam vox alias munimen quodlibet, & interdum montem no­ [...]at, a [...], ab assurgendo in altum [instar turris.] Oxburgus igitur, si clarum aliquando oppidum non exstiterit, locum tamen munitum fuisse non est dubitandum. Hoc idem generaliter statuo de villis omnibus, in quorum nomine burgh deprehenditur. Sedes antique fuit Weilandorum; è qua familia Thomas W [...]ilandus, Capitalis Justitiarius civilium Placitorum, 18. Edw. I. in [Page 141] exilium mittitur à Parliamento. Postea venit ad Tuddenhamos, & deinde (hae­redis eorum nuptiis) ad Bedingfeildos, claros aliquando in aula Regia, & flo­rentes hodie latifundiis. Duxerat quippe Edmundus Bedingfeildus sororem Thomae Tuddenhami Equitis amplissimi; & ex regni vicissitudine fortunarum suarum dispendium metuentes, pactum ineunt obsignatis tabulis, quod Be­dingfeildus signa sequeretur Edouardi IV. Tuddenhamus vero Henrici VI. & si belli alea Edouardo cederet, Bedingfeildus gratiam Regis Tuddenhamo compararet; sin é contra Tuddenhamus id praestaret Bedingfeildo. Victo­riam autem obtinente Edouardo IV. Bedingfeildus à Rege impetrat Tudden­hami patrimonium, sed Tuddenhamus ipse capite plectitur; clam hoc omne; nam utrique aliter capitale.

Hinc processit versus Oxburgum, quarto distantem lapide; velut burgos conjunctura fossa alia hodie locis aliquibus complanata; at Centuriam Clack­lose, qua à fluviis non cingebatur, muniens & disterminans. Transiens autem juxta Bicham-well, appellatur Bicham-dich; & devenit terminus Libertatum Bicham-ditch. Newmar­ket-ditchRamesiensis Ecclesiae ex parte Clacklos (ut Newmarket-dich libertatum S. E­thelredae ad coenobium S. Edmundi Buriensis pertinentium.) Sic enim Charta Henr. I. Sect. 215. Sciatis me concessisse & confirmasse Ecclesiae S. Benedict. de Ramesia, &c. Socam, sacam—& omnes libertates & omnia placita ad coronam meam pertinentia apud Bancastre & Ringsted & apud Clacos-hundred & dimid. cum 64. Socomannis ad hundredum pertinentibus, scilicet infra Bicham-dich & apud forum de Dunham, quod pertinet ad Winebodesham. Socomanni dicti sunt coloni, qui domino suo rem expediunt frumentariam: & cum in coeno­bio Ramesiensi 60. essent Monachi, qui totidem anguillarum vescerentur milliariis, ut in Well supra memoravimus, hic singuli singulis suppeditantur Socomannis, cererem ministrantibus, quatuor Abbati reservatis.

Swafham Quinto hinc lapide, in acclivi solo Swafham conspicitur; mercatu nobilis, quem à Rege ..... obtinuit. Aërem exhibet à laudatissimo medico lau­datissimum. Splendidam item Ecclesiam, cujus insulam borealem pedaneus condidit aginator.

Castle-Acre. Descenditur hinc ad Castle-Acre, i. e. castellum in agro; quod è resurgente monte late prospicit adjacentia. Prisca hic sedes altera Comitum Warrenniae; quorum antecessor Willelmus de Warrenna forestarius Regis Gulielmi Con­questoris, & Gulielmus de Albeneiaco pincerna ejus, sortes adeo luculentas in Occidua tulerunt Norfolciae parte, cum Normannis divideretur, ut nulla pene villa quae ab Episcopo aliquo vel Monasterio non possideretur, quin in alte­rius eorum ditionem cessit. Testantur hoc antiqui Libri Feodales, qui alter­utrum faciunt cujusque pene villae capitalem Dominum. Ad radicem castelli (quod rudera tantum nunc ostendit) Gulielmus de Warenna Comes Surre­giae, An. Dom. 1090. condidit Prioratum in honorem beatae Virginis Mariae, cellam vero futuram statuit Lewensi Monasterio, quod in Sussexia pater ejus Gulielmus instituerat. Hic me monet locus, ut cum prudentia junctam [eorum] pietatem memorem, qui non minus animae saluti quam corporis consulentes, spiritualibus se militibus contra hostes spirituales, aeque ac se­cularibus contra seculares munierunt. Vix enim reperitur primaria sedes ali­cujus magnatis, quae castello suo non subjunxit coenobium.

West-acre. Nar. Claruit & contiguis West-acre eximio Monasterio. Castelli pomoerium & utriusque moenia Monasterii perlabitur fluviolus elegans, Nar (quod aliis commune est nomen) mihi ut videtur appellatus. Nam in procursu statim occurrit Narford villula, quasi Narris vadum; & subinde Narburgh, quasi Narford.burgus seu castrum ad Narrem: cui belle convenit quod in Ligurinis canitur,

1 Meliori subdita Caelo
Castra locat, gelidas vicini Naris ad undas.

[Page 142] dictum de Narnia, oppido Italiae, cui Nar fluvius interluens nomen indidit; & Tyberi conjungitur: exemploque monitus ego, villas has nostras Narniam ad­vadum, & Narniam ad burgum appellabo.

[...] Quod de Narburgh prodiderunt incerti senes, ego posteris non refundam. Nec his fidem mendicabo, quae Johannes Bramis Thetfordensis Monachus, circa aevum Henrici IV. (ut scriptura Codicis mihi suggerit) in historia Wal­dei Regis hujus tractus, decantavit. Saepe tamen ejus nititur auctoritate Jo. Catus, in Antiquitate Cantabrigiensis Academiae, & ab eodem succrevisse lu­men mihi aliquando, non negaverim. Laborare cum fateor Normannorum & Gallorum vitio, quo Romani suos deturparunt, fictitia veris commiscentes.

Nerburgum resert, civitatem fuisse sub aevo Uter Pendragonis, qui Rex Britanniae floruit An. Dom. 500. Comiti cuidam Okenardo subditam. Eam à Waldeo fortiter obsessam, defendisse strenue septem mensibus Okenardum; noctuque saepe exsilientem hostium multos interfecisse: & Florentium quen­dam Waldeo dilectissimum truculenter vulnerasse; Waldeum facto gravius irritantem: qui vindictae acriter jam incumbens, Okenardum ad extremas adegit angustias. Fractum igitur, à Seneschallo suo admonitum fuisse ut se fugae traderet: St enim (inquit Senescallus) te Rex Waldeus in manibus poterit habere, te ut latronem faciet interire. Igitur cum Rex supervenerit, fugies de civi­tate ista, & nos castellum istud custodiemus, mittemusque ad Waldeum, & vitam nobis & membra obtinebimus ab eo, priusquam trademus illud in manus illius. Okenar­dus igitur, nocte superveniente, equo ascenso, egressus est; venit & Londonias ad Uther, &c. Senescallus autem de salute pactus, civitatem reddit, & Waldens protinus delevit eam. Haec & plura Brainis. Rerum illic antique gestarum, te­stimonium adfert ipse locus. Sepimentum vetus militare, ubi (si forte uspiam) castellum Okenardi. Saxones burgum vocant, & a Narburgo usque ad Oxbur­gum velut burgos conjunctura protenta olim fossa militaris, hodie licet locis aliquot complanata. Adde quod dum Clemens Spelman Eques, 30. abhinc an­nis, hortum novum sub radice burgi moliretur, multa humana ossa cum ar­morum partibus aliquot sunt effossa.

Longe autem ante Normannorum adventum, inducto aratro; illud civi­tatis exhalavit dignitatem. De ea enim, ut de villula rusticana, sic Liber Angliae Censualis, qui Domesdei appellatur, sub Titulis Norff. Roger. & Hun­dred. de Grenehow: Nereburgh tenuit Aelwius tempore Regis Edwardi Confessoris, modo R. Vicarius terrae pro Manerio. Tunc [erant ibidem] 38. villani, & post 28. modo similiter. Tunc & semper 10. Bordarii; modo tres. Tunc & post in do­minio 3. carucatas [terrae;] modo 2. Aelwius iste videtur fuisse Danus, ut plerique sub hoc aevo Norfolcienses; ejectus autem à Rogero supradicto, puta Bigoto Normanno, cui amplam in hoc tractu partem Gulielmus Con­questor elargitus est. R. vicarius terrae (uti censeo) fuit Robertus, aut Ro­gerus de Narburgh, qui Rogeri vice hoc manerio fruitur, & splendidae Nar­burgorum familiae (qui à Bigotis ipsum acceperunt, ut castrum suum Nor­wicense feodali jure tuerentur) initium dedit. Deficiente vero sub Henrico VI. prole mascula Ela filia Gulielmi de Narburgh Shouldamo primum, & se­cundis nuptiis Henrico Spelman collocatur, e quorum filio juniori Johanne Spelman, secundo Justitiario Regii tribunalis, valde (ut Fitz-herbert testa­tur) perito in lege, Johannes atnepos Narburgo potitur.

[...] Sh [...]ld­ham. A Narburgh crebra ludens vertigine, ad Marham & Pentney, claram utram­que suo Monialium coenobio tendit fluviolus. Deinde ad Shouldham coenobio item ornatam, & exhausta propemodum antiqua familia Shouldhamorum, aqui­lam Wormgey [...]auream in coelo ceruleo gestantium. Mox allabitur Wormgey & Middle­ton, castello & coenobio Monialium aliquando insignem, ad Barones de Scales, & postea ad Comites Oxoniae ex nuptiis spectantem. Illam castello item & coenobio decoratam, & à [Willielmo] de Warrenna primo Comite Surriae, ad Bardolphos clarissimos Barones deductum.

Jam ad Lennum properans Narra fluvius, domino suo Isidi conjungitur▪ [Page 143] qui Congunum fluvium ex parte alia suscipiens, insignem in compitis statio­nem oppido insigni expedivit. Dici autem Len (nam corrupte Lyn) à Bri­tannico Len [...]hyn pro stagno aut diffusis aquis, si vox eo traheretur (ut Camdenus voluit) non assentior. Saxonicum plane existimo, & alias praedium, alias feodum significare. Sic apud Germanos hodie Fanelhen, praedium feu feodum Baronis; & Len-Episcopi idem plane quod praedium Episcopi. Contrahitur etiam vox Saxonibus nostris non tam praedium significare, quam prae­dium Ecclesiasticum; quod in aliarum villarum nominibus saepius deprehen­deris, & Britannis ipsis (si hoc malueris) omnino similiter. Illis enim (si mihi non imponant) Ter-llen significat terram Ecclesiae, vel Ecclesiasticorum. Labitur & vir optimus pede altero. Nam hoc dictum opinatur Lennum Epis­copi; illud in adversa ripa, (vulgo Old-Len) Lennum Regis: cum Len-Regis idem sit à tempore Henrici VIII. quod eausque Len Episcopi. Permutante enim Rege cum Episcopo Norwicensi Monasterium S. Benedicti de Hulmo, & terras plurimas, pro terris & dominiis Episcopatus sui; Len inter alia ad Regem transiit, & jam inde nomen (ut oportuit) in Lenn Regis commutavit. Glauci forte & Diomedis permutatio; recte vero si ariolar, sol eatenus alium non vidit Lenni dominum quam Episcopum East-Anglorum. Illic primarium ejus municipium, illic sedes altera, illic cuneum. Hoc in Mint-len, illa in con­tiguo Gey-wood. Magnam illic & primariam Ecclesiam S. Margaretae dicatam sub Gulielmo Rufo struxit Herbertus de Losinga, qui Episcopatum transtulit de Thetfordia in Norwicum. Praetoem dedit Rex Johannes; à Joanne Graio, Episcopo Norwicensi, Villae domino (cum Regem hic lautissime excepisset) exoratus. Regis tamen non Officialem fore sed Episcopi; jurandumque no­vum Quaere de hoc (Spel­manni nota.)quotannis in curia seu praetorio Episcopi Gaywodensi, ubi aulam & e­gregiam molem Praesul iste suscitabat. Episcopo igitur in omnibus subau­diens, homo Episcopi nuncupatus est. Largitur Rex praeterea splendida pri­vilegia, & à latere (ut ferunt) gladium suum; sed quo nomen ejus magis ce­lebrant quam in aliis omnibus munificentiis, cyphum ex argento egregium, interius deauratum, & exterius encausto (quod miraberis) insolito, costisque ex auro solido illustratum. Piaculum ducunt merum non lectissimum ex hoc haurire: & hauriunt quidem, non libant; caduntque interea cypho plures quam ipso gladio (Dicam cum Martiali:

Hic Scyphus est in quo misceri jussit amicis
Largius 1Henricides, & bibit ipse merum)

quem ostendunt hodie, & à latere Regis Johannis traditum perhibent, Ma­jori praeferendum: ego vero ut credam non adducor. Non enim Regis fuit, sed Episcopi municipium; nec Majorem statuit Rex Johannes sed Praepositum, quem Henricus III. in Majorem commutavit, cum Lenni cives in Insula Eli­ensi partes ejus contra pr [...]scriptos Barones, fidelius multo quam feliciter [tuebantur] & in Charta Regis Johannis qua id privilegii concederetur, nulla gladii mentio. Certe Henrici VIII. donum fuit, cum villam consecutus esset ab Episcopo. Novis enim eam ornans privilegiis, & Burgenses mutavit in Aldermannos; & gladium, (expressis in Charta verbis) Majori concessit prae­ferendum. Testatur ipsius gladii in capulo inscriptio.

Dominium villae cum censu, vectigali & theolonio ad Episcopos spectabat; sed theolonii tertiam partem Comites Arundelii jure castri sui de Risinge ven­dicabant. Hanc cum aliquando Rogerus de Monte alto, Baro eximius, & jam castri dominus à Lennensibus postulasset; moeniis atque carcere interclusum tenent, donec relaxasset jus suum, juramentoque confirmasset, se nunquam super hoc aut inficias iturum, aut apud Regem conquesturum. Longae ex­tant rei ambages in Fisci schedis, Anno ..... Edw. II. Sed & in ipsum muni­cipii [Page 144] sui dominum, Norwicensem Episcopum, cervicem adeo erexerunt, ut jura aliquot quae super eis habuit dominii ratione, pauperibus Risingae Bur­gensibus (velut in ludibrium & conculcationem) elocavit. Incentivum prodere videtur haec Charta; quam ab alia pariter denotanda supposuimus:

‘W. Dei gratia Episcopus Norwicensis, dilectis & fidelibus suis Johanni de Bedeford. Gilb. fil. Warin. & omnibus aliis probis hominibus suis Lenn. Excepto Eadmundo de Wasingham Majore nostro & fautoribus suis, salu­tem & Dei benedictionem. Sciatis quod cum nuper in die Sti. Stephani venissent ad nos apud Norwicum dictum Eadmundus Angerus de Rising & quatuor alii Burgenses tam ex parte nostra quam ex parte sua, villam no­stram de Lenn peterent ad firmam sicut prius; Nos habito cum pluribus viris sapientibus consilio, tandem optulimus eis ut ipsi Eadmundus Angerus & duo alii ditiores villae reciperent villam illam ad firmam, viz. tali modo quod neminem talliarent, nec pauperes gravarent, nec alicui injuriam face­rent. Quod quidem penitus refutaverunt, & Willielmum de Pinkebek ut Ballivum nostrum receperunt cum gratiarum actione. Et super hoc audi­vimus, quod (nescimus quorum ducti consilio) ipsum Willielmum ut Balli­vum admittere recusantes ingressum Domorum nostrarum & Bothae nostrae denegaverunt eidem. Et ideo vobis mandamus quod in fide qua nobis tene­mini, eidem Willielmo & Ballivo nostro sitis intendentes, & eidem ingres­sum & seisinam domorum nostrarum, Gwyldhallae, & Bothae nostrae habere faciatis sine omni dilatione, ut fidelitatem & discretionem vestram merito debeamus commendare. Datum apud Thefford III. Kalend. Januar. Ponti­sicatus nostri anno IV.’

Esculentis & poculentis ita a natura accommodatum, ut penarium Cereris atque Bacchi videatur. Ex parte enim ejus Orientali tanta incumbit vis frumenti, ovium, cuniculorum, & campestrium alatilium; & ex parte Occi­dentali, casei, butyri, boum, cygnorum, & palustrium volatilium; in viciniis, piscium hinc marinorum illinc sluvialium & recentium; ut vix in tota Bri­tannia, forte & Europa, in consimili circuitu tanta habeatur eduliorum diver­sorum copia.

[...]. Lenno per Gaywodiam (de qua diximus) exeunti Ashwicken-Thoresbei prostat, domicilium dixerim an latibulum, nescio; sed splendido cinctum pa­trimonio, domino satis dispari dominatum.

In recto quem faciunt angulo Isis & Congunus fluvii, e palustri solo assurgit, [...].nomen inde deferens, Rising; & egesto ex immani fossae colle arduo in gyrum dato, castro insuper coronatur. Fossae species Gothica est, ut Procopius docet, Normannisque ideo usitata, genus à Gothis deducentibus. Licet enim Saxones castra sua, gyrata etiam fossa circumscripserint, angustiori tamen usi sunt, & minus depressa, sed majoris plerumque circumferentiae; qua & hos Romani superabant. Romani autem (ut Polybius refert & Vegetius) in ob­longum, si pateretur locus, castrametebantur quadrum, fossaque 16. tantum muniebant pedum, praetenta anteriori lateri fossa alia quam loricam appel­labant. Formam infra videris, cum de Brancaster tractaverimus. Ex his quae diximus, uniuscujusque populi, Romani, Saxonis, Dani, & Normanni depre­hendas munimentum.

Romanos apud Risinge aliquid habuisse praesidii, & loci monet opportunitas, littus procul nudum, portum juxta celebrem despicientis; & effossus in vi­cinia nummus Constantini magni inde pridem ad me allatus.

Castri exterior fabrica, Norwicensem exprimit; tecto pariter & intestinis spoliata. Tribus in muro firmata turribus, quas trium maneriorum domini, viz. de Hunstanton, Wutton, & Ridon, feodali obsequio tuebantur. Munici­pium adeo vetus, ut originem ejus nesciant archiva Regia. Praetore gaudet, & binis olim in hebdomade mercatis; nundinisque in anno quolibet 15. die­rum. Ab anno ..... duos misit ad Comitia regni Procuratores, quos Bur­genses vocant. Vetus fuit Albeniorum, Comitum Arundeliae possessio, & in [Page 145] divisione amplissimi eorum patrimonii inter sorores Hugonis Comitis, in por­tionem cessit Roberti de Monte alto, Baronis limitanei.

Robertus de Monte alto, qui ..... Reliqua desiderantur.

Prisas hic vocat, jus capiendi annonam in villis circumjacentibus ad sustenta­tionem castri, precium intra 40. dies reddentibus, ut Stat. An. 3. Edw. I. de­finitum est.

Cong­ham. Ad orientalem Risingae limitem (Mantua me miserum nimium vicina Cremonae) Congham adest, nomen a Conguno quem emittit fluviolo auspicata. Hic pars maxima nostri patrimonii, quam obtinuit olim Gulielmus Rusteng, qui sub Comite Arundeliae militans in terra sancta tempore Richardi I. Miles factus est ab eodem Comite, prout etiam—de Ingolsthorpe, & Andreas de Sharneburne. Hoc quippe seculo dominis licuit capitalibus clientes suos mili­tes instituere, etiam Episcopis & Abbatibus. Sed Abbatibus prohibetur in Concilio [1 Londinensi sub Anselmo Archiepiscopo Cantuariensi, An. 1102.]

Ad Mallingham hinc proceditur, quam Robertus Mordant Prothonotarius Civilium Placitorum sub Henrico VIII. nuptiis tulit Barbarae, filiae & haeredis Johannis le Strange jurisconsulti, easdemque transmisit ad Pronepotem. Rougham

Huc se adjungit Rougham, ab aevo Richardi II. Yelvertonorum sedes, e quibus Willielmus sub Henrico VI. Christophorus sub Elizabetha, & Henricus hodie, Justitiarii claruere; hoc est, (ut avum taceam, qui & jurisconsultus fuit) filius pater, & tritavus. Sed Christophorus & Henricus in Northamptoniae consederunt Comitatu.

Descripsi ante aliquot annos in Norfolciae tabula geographica circulum, duodecem habentem in semidiametro mille passus. Centrum posui in campis Roughamiae, deprehendique sub illius ambitu fuisse 24. Monasteria, totidem­que minorum nobilium domicilia. Simul in vigore omnia, cum ferale illud exiit de excindendis monasteriis Senatus-consultum. Domicilia ab iisdem familiis vel eatenus (puta 90. post excidium annos) possideri. Monasteria vero, ter, quater, quinquies, dominos cum familiis eructasse, nec reperiri ho­die Monasterii sedem, quamvis uberem & amaenam unamquamque (nam, ut Abel, pinguia Deo sacrificabant majores nostri) qua una eademque familia nobilis est gavisa. Duas excipio, quarum altera non dum tertiam, altera ne secundam transiit generationem. Sed nec haec familiae alicujus habitatio; nec illa à gravissimis infortuniis unquam libera. Par in reliquis observatio; ut intelligas non inanes fuisse multiplices illas maledictiones raptoribus istorum à veteribus imprecatas; nominis vel familiae exstirpationem, patrimonii ef­fusionem, lites & jurgia diuturna, infortunia saepe gravissima, saepe etiam capitale excidium. Numerosa praesto sunt exempla; sed hic aliud in­stitutum.

Babbing­ley. Sed recurrendum mihi est in occidentem ad Borealem, quem faciunt Isis & Congunus, angulum. Illic Babbingley, ubi S. Felix East-Anglorum Apostolus, circiter An. Dom. 630. à Dunmocco applicans, incolas imbuit Christiana fide, primamque hujus tractus Ecclesiam condidit, quae à posteris ejus dicata pa­trocinio, hodie S. Felicis appellatur. Rei memoriam etiam praedicant adja­centes Flitchammontes, Christianorum dicti, the Christian-hills; & in vicinia Flitcham, quasi Felix-ham, i. e. Felicis villa seu habitatio. Haec Coenobio ornabatur Monialium, quod ejus fundator Cellam statuit, ad Abbatiam S. Mariae Wal­singhamiae pertinentem; dictaque ipsa est S. Maria de Fontibus, quod ab Ori­ente fontes ostendit aprico interdum meatu, interdum subterraneo ludentes.

Habetur hic in campis quadrata area & leni conclusa fossa Mallobergium, quod incolae Flitcham-burgh nuncupant. Ibi olim, ut in Praetorio conveniri soliti sunt Centumvirales judices (the Free-holders vocant) cum istius Cen­turiae seu Hundredi, tum & aliarum ad lites in Centuria emergentes dirimen­das. Sic enim in Brevi quodam Gulielmi Rufi. ‘Willielmus Rex Anglorum [Page 146] H. Camerario salutem. Facias convenire & considere tres Hundredos & dimidium apud Flicceham-burch propter terram illam de Holme, &c.’ Huc etiam convenire olim solebant Centenarii, ad Dominum Hundredi eligen­dum: & ex prisci moris vestigia huc annuatim hodie indicuntur Centenarii seu Hundredarii obsequium domino Hundredi (quem Sectam Hundredi vo­cant) praestituri.

Progredienti versus Boream, Appleton, ubi splendidas aedes non ita pridem exstruxit Edouardus Paston; & Sandringham, ubi ab aevo Edw. III. Cobba­rum succrevit familia, à laeva praeteritis ad Sharneburne descenditur. Hic Thokus quidam loci Dominus, a S. Felice conversus & baptizatus, secundam extruxit Ecclesiam, quam in honorem SS. Petri & Pauli Felix dedicavit. [...].Parvam siquidem, & (pro ratione illius aevi) ligneam; unde longo tempore Stock-chappel appellata est. Thoki deinceps haeres ex multis suscepta nepo­tibus, Edwino cuidam Dano Angliam venienti cum Canuto Rege An. Dom. 1014. desponsata est; Edwino Rex Canutus Snetesham dedit, & multa prae­dia de quibus postea, Sherburnamque uxoris patrimonium confirmavit. Hic ille omnibus pace atque otio fruitur, donec à Normannis ejectus est ex omnibus. 1Distribuente enim inter Commilitones Angliam Gulielmo Con­questore, & partes hic amplissimas Gulielmo de Albeneio, & Gulielmo de Warrenna concedente, ejecerunt illi quotquot vellent, & Edwinum pariter expulerunt. Conqueruntur pulsi & ejecti apud Regem, & (ut verbis utar MS. Cod [...]cis) ‘dixerunt ei quod nunquam ante conquestum, nec in con­questu, nec post, fuerunt contra ipsum Regem in consilio vel auxilio, sed tenuerunt se in pace; & hoc parati fuerint probare quomodo ipse Rex vel­let ordinare.’ Per quod idem Rex fecit inquiri per totam Angliam.

Possedit praeterea Thokus quicquid jacet ab Occidente Sharnburniae, versus mare; deditque totum Ingulpho cuidam cum filia unica in matrimonium, qui de nomine suo villam ibi condidit Ingolsthorpe, ut refert MS. Liber cui fidem cedo, licet ego dictam putassem ab Ingol fluviolo, qui hic mare in­greditur.

Ad fontem Ingolis habetur Netesham, i. e. villa vaccaria, hodie Snetsham, quam (ut diximus) Canutus dedit Edwino Dano; sed eripuit illi Gulielmus de Albeney Normannus; suaeque prosapiae Comitibus Arundeliae permansit, do­nee ex nuptiis unius haeredum ad Monte-altos transiit, & ab his per stirpem regiam ad duces Lancastriae. Nobile dominium & splendidis ornatum privi­legiis; sed inter ignobiles jampridem distractum.

Dedit etiam Canutus Edwino Dano planiciem ex parte Orientali Snetesha­miae, ad senos incultam mille passus. Illic Edwinus in lapideo colle, quem seculi illius Latinastri Hogum pecosum appellabant, Stanehow condidit.

Sedgeford A vado hic prope arundineo nomen ascivit Sedgeford, Ecclesiae S. Trini­tatis Norwici olim collata: sed possessio nuper Johannis le Strange, cujus ego filiam primogenitam in matrimonium duxi; patrimonium vero (qua per fas aut nefas) sub puellarum abrasit socer infantia; suam inde pinguescens sobolem. Injuriae, longae sunt ambages. Transeo.

Sedgfordia exeunti exurgit Promontorium S. Edmundi Regis & Martyris nobilissimi; qui ab Offa Rege East-Anglorum in regni adoptatus successio­nem, splendido navium & ministrorum apparatu, à Germania, huc in por­tum vicinum appulit, cui nomen eo tempore fuit Maiden-boure, i. e. thalamus virginis. Quis autem hic esset locus magna me tenuit dubitatio. Portum de Hecham exilem & obscurum censeo; nec Burneham satis laudabilem ad splendidum excipiendum navigium, quamvis naves illius seculi satis agnosco tenues. Lennum igitur in considerationem veniens, prae caeteris arridet; tum quod portus sit tractus istius eminentior, tum quod S. Margaretae virginis sacrarium esset & thalamus. Hanc enim Lennenses ex antiquo Divam co­luere [Page 147] tutelarem; templi ejus custodes sunt, & in honorem ejus tria capita draconis, quem illa cruce armata triumphasse dicitur, singulo in ore singulis sauciata crucibus, pro insignibus gestant. Habeturque Emblema Virginis in sigillo suo publico, draconem cruce vulnerantis & conculcantis, cum hac circumscriptione

Stat Margareta, draco fugit, in cruce laeta.

Sanctus vero Edmundus à Maidenbore non longe progressus, villam condidit regalem Hunstanstone; quod Johannes 1Pringtonus dulcedinem & potentiam inter­pretatur; moratusque illic per annum pene, Psalterium Davidis in Saxonico idiomate memoriter sategit recitare. Liber ipse à clientibus suis Monachis Buriensibus in ipsius honorem religiose custodiebatur, usque ad excidium Monasteriorum. Ab Hunstantonia perrexit Athelburgum, regnique anno 16. martyrio coronatus, Divorum ascribitur collegio; & in vertice Promontorii Hunstantoniensis capella splendida honorabatur.

Pervenit deinceps haec villa Regia ad Alfricum, sub Canuto Rege Elma­mensem Episcopum; qui eandem, cum Holme adjacente vicula (cujus Eccle­siam struxit Hen. Nottingham) Monasterio S. Edmundi Buriensis dono dedit. Sed deducta postea sub ingressu Normannorum, ad Albeneios jure feodali Extran [...]is vulgo le Strange ceditur, ob praesidium à 2. militibus faciendum in castro de Risinge. Longe itaque mansit apud Barones le Strange de Knoken; sed à Johanne Barone An. 9. Edw. I. confertur in Hamonem fratrem suum de se & haeredibus suis tenendum per ser.—E cujus prosapia illic hodie floret Hamo le Strange Equ. priscam familiam avitis ornans virtutibus, & (quod magis in precio) facultatum accessione.

Cerere (ut Hiblen melle, croco Tmolum invidere taceam) luxuriat pars haec maritima, praesertim hordeo, ex quo vinum conficiunt Britannicum, vitis aemulum; Saxonibus antiquis bier (quod proprie hordeum significat) appella­tum. [...] Graecis, qui hoc adeo capiebantur latice, ut in honorem ejus Byrtorum seu hordeaceorum festum instituere, à Constantinopolitanis usque ad Anastasium Imp. qui hoc sustulit, celebratum. Festum (inquam) sustulit Imperator Anastasius, laticis desiderium omnes non tollent Imperatores. At num Saxonibus Beire in usu? Bryton (inquam) seu potus hordeaceus, quem alio nomine eale, & à dulcedine Soth-eale appellabant: non noster iste lupu­latus: nam cum hordeo lupulus ante medium regni Henrici VIII. nuptias non inierat. Ex illa vero die summo in honore lupulatum Bryton; quod (ut Graeci) Numen colimus, salutisque praedicamus donatorem. O funestam & infelicem salutem! Prima enim quae hic unquam pota fuit, in excidium transiit totius gentis. Cum Hengistum Saxonem ad auxilium induxisset Rex Britannus Vortiger, & hospes hospitem mutuis se exciperet convivationibus, Roëna Hengisti filia pernoctanti apud patrem Regi propinans ait, Was-hale. Rex loquelam non intelligens, quid dixisset, quaerit à circumstantibus; Re­sponsum est potare eam salutem Regi; qui rei captus novitate, blanditias colit cum virgine, & brevi in uxorem ducit. Illa patris erudita technis, Proceres regni ad convivium vocat, ubi ex insidiis trucidantur omnes, & ad Saxones translatum regnum.

Hic BranodunumBrano non procul fluvio, & duno pro monte) vulgo Brancaster, i. e. castrum ad Branum; pelagus à sinistris late spectat; à dex­tris longius ericeta.

Recipiente se in orientem littore, Branodunum vetus, hodie Brancaster, eri­ceta longius, pontem juxta despiciens, Romani castri vallum exhibet, ad mensuram à Caesare datam (Bell. Gall. lib. 2.) Castra in altitudinem pedum 12. vallo, fossaque duodeviginti pedum munire jubet. [...]ormam castri cum singulis suis dimens [...]on [...]s, ut [...]omanam 2plane agnoscas apposuimus. [In Codice MS. Sp [...]l [...]anni spatium va [...]uum relinquitur; ipsa castri figura desideratur.]

[Page 148] Castri dimensiones ipsum ostendunt non tumultuarium fuisse, aut in tran­situ factum, sed legitimum & stativum, ad custodiam insuper totius littoris Borealis contra Saxonum irruptiones (quibus adeo expositum fuit ut Littus Saxonicum appellaretur) destinatum. E [...] nomen a Bran seu Brun & Burn flu­violo, & duno pro monte; quod etiam, ut berig & burg Saxonibus, oppidum alias significat. Bran vero & Brun confundi videas in Leofrici Anglo-Sax­onis cognomine, qui alias Dominus de Brane, alias de Burne appellatus est, pater scilicet Herewardi. Stationem hic habuit sub Comite Littoris Saxonic [...] Praepositus equitum Dalmatarum cum sua vexillatione.

Sed illud quaero, quorum tempore coeperit hoc Litus Saxonicum appellari, ejusque Praefectus, Comes Litoris Saxoni [...]i. Ferunt, inde nomen quod hic Comes litus tueretur contra Saxones. Qui autem hoc? Num Britanniam in­festarunt Saxones, Romanis dominantibus. Certe non reperi. Pro derelicto autem habuerunt An. Dom. 446. cum ab Aetio Consule opem contra Scotos & Pictos, Valentiniano III. imperante, implorantes non [...] vero ante annum 449. non appellunt, nec tum quidem a V [...]tigerno haud accersiti & Britannis. Ante hoc igitur tempus non videtur Saxonicum L [...]tus appellari. Quid ergo in Imperiorum notitia tanto proponuntur fastu Ro­mani Magistratus in Britannia, Vicarius Britanniarum, Dux Britanniae, Comes Britanniae, Comes litor [...]s Saxonici, &c. cum insigni Praefectorum, Officialium, & ministrorum cat [...]rva, & apparatu? Suspicor; ut in Provinciale Ecclesiarum in Romana Cancellaria, Patriarchae, Archiepiscopi, Episcopi Suffraganei, hodie numerantur sub infidelibus; ut floruerunt olim sub Christianis. [...]oc autem posito, male convenit ut Romani nomine uterentur sua ditione non enato: Provinciale siquidem priscas retinuit appellationes. Celebre igitur mo­numentum Notitiam Imperii, de cujus origine & antiquitate crebro conten­ditur, siquido constat sub exitu Valentiniani III. concinnatum fuisse, non exutis omnino Romanorum reliquiis, sed turgescente indies alluvione Saxo­num; litus jam ideo nuncupari Saxonicum, & Praefectum ejus, Comitem Li­toris Saxonici, qui sub Valentiniano I. superioribus paucis annis (Marcelino teste) Comes maritimi tractus appellatus est. Haec ad ambiguum enucleandum; ad me redeo.

Pinguntur huic Comiti in Notitia pro insignibus oppida IX. quibus praesi­debat in Insula (puta Britanniae) cum nominibus ascriptis: soil. unum in Sussexia; 5. in Cantio; 1. in Essexia; & 2. in Norfolcia, Branodunum, viz. & (de quo postea) Garienum. Merebant sub eo una legio, quae hoc tempore 1000. fere continebat pedites: seni Numeri forte 1200. pedites: & 2. or­dines equitum, i. e. Dalmatarum, qui praesidinm hic agebant; & Stablesiano­rum, qui ad ostium Garieni, numero simul 200. vel hunc circiter. Sic tota ejus militia per 9. oppida seu stationes disposita, continebat plus minus 2200. pedites, & 200. equites. Dalmatae vero hi dicti sunt, quod e parte S [...]lavoniae quam Dalmatiam tunc appellabant, conscriberentur. Eorum insignia prae­bet,


ut vides, 1 Notitia: colores vero ex antiquis MSS. sic expressit Pancirollus. Praeferunt (inquit) in alba par­ma duplicem argenteum globum, quorum primum minorem sex virides munitiones circumstant; alter 7. acutas cuspides emittit. Supra est quadrata tabella, quae unam legem duplici orbi Romano dari insinuat; prominentes mucrones caedem hostibus nunciant.

Eruuntur hic saepe Romana numisinata; ad me etiam nonnulla delata, cum duobus aliquando vasculis aeneis seu capedunculis. Regiam autem villam ipsam (sic enim olim appellatam reperiri, & regalibus imbutam hodie privi­legiis) Coenobio S. Benedicti Ramesiensi dedit Vulfgiva Comitissa, uxor Ailwini East-Anglorum Ducis, & totius Angliae Aldermannus [Page 149] (id est, Justitiarius) qui opulentissimum Ramesiae Monasterium fundavit sub An. Dom. 973.

Burnham Brani ostio septemplex innititur Burnham; nomen inde (si Britannorum Bran, cum Saxonum Brun, Prun, & Burn confunderim) etiam deferens. Hoc autem isti pro torrente dixerunt: sed Gunterus (Austriades) ubi de Hayl-prun oppido Imperiali loquitur, hayl salutem exponit; prun vero fontem: eoque sensu, Fontem (inquit) liquere salutis. Portu claret & mercato; aliquando etiam Prioratu.

Obtinuerunt hic olim è Warreniorum dono splendidum Calthorpii bene­ficium, dominorumque una symbolum auro & cyaneo tessellatum, quod tra­jectu distinctum armelino hodie gestant in clypeo; ut pro more veteris illius seculi patronum enuncient feodalem. Sic ut diximus Sharnburni Albeneio­rum: & moris typum exhibuisse videtur apud 1Giraldum Cambrensem, sub Henrico I. Giraldus de Windesora, Constabularius Penbrochiensis, qui XV. armigeris arma Dominorum suorum cum feodis dedit, ipsosque statim mili­tari cingulo decoravit. Habetur sub Edw. III. in quatuor illis armigeris pugnacissimi Baronis de Audeley recentius testimonium, sed nos aliud agimus. Transiit haec haereditas superiori seculo cum filia Philippi Calthorp Equitis ad Parkeros, à gente Baronum de Morley propagatos.

Egeruntur hic secundum littus crebri monticuli; Saxonum & Danorum proculdubio sepulturae, (nam de Germanis Tacitus 2, Sepulchrum (inquit) cespes erigit) an & Romanorum, fossione dignoscendum. Hi mortui, cineres in urna condidere, aggestis desuper cespitibus; ut in exequiis Mezentii pro­dit Virgilius. Illi non cineres, sed cadaver integrum colle opprimebant. Tria vero exhibentur observanda. Primum, tractum hunc qui jam Cer [...]ris videatur thalamus, incultum tunc fuisse; nam in arvis sepelire mortuos, Gentium prohibuit superstitio; ut apud Ciceronem legas in fine Libri 3. de legibus. Secundum, Paganorum & Gentilium haec fuisse monumenta; Chri­stiani enim more Judaeorum in fossa occultabant mortuos, licet à Saxonico berig, quod montem notat, nos hodie to bury dicimus, quasi monte tegere, ut Latini etiam tumulare. Tertium, Scenam hic fuisse Martis, clientumque ejus caemiterium, qui Branoduni & pro portu patriae ad castra juxta Creake & Holkham contra Danos militantes▪ occubuere. In campis enim de Creake haud Creake Holkham.procul à Coenobio, amplum erigitur sepimentum militare, Saxonici operis; à quo decurrens via regia, blood-gate, id est, sanguinea via, nuncupatur; cru­enti illic proelii testimonium. Habetur & his partibus Ebuli herbae copia; Ebulum.quam velut è Danorum exortam sanguine, incolae Dane-blood vocant.

Habentur & per loca in depresso littore arenarum tractus, marinos cohi­bentes fluctus, the Meales à farinae pulverisve similitudine (nam vox utrum­que The Meales Miles, seu Mules. Walsing­ham. sonat à Suevico & Germanico Mul pro pulvere) appellati.

Quarto à mare lapide, depressius in valle sedet Walsingham, illustri olim coenobio in honorem beatae Mariae Virginis celebrata. Penetrale illic paren­tum religione augustissimum, ad effigiem capellae Nazareth in terra Sancta, ubi Gabriel Angelus Deiparam Virginem salutavit. Conditum à Richolde vidua nobili, villae Domina, supra 400. annis ante excidium Monasteriorum cum in visione tertio ad hoc excitata esset ab ipsa diva, exemplum (ut ferunt) aedificii demonstrante, & miraculo postea fabricam erigente. Multos illic divinae potestatis radios effulfisse perhibent; sanatas omnes morborum species, nec obticent mortuos suscitatos. Hinc ab omni nostri orbis angulo celebris ad Divam Virginem Walsinghamiensem (Parathalassam vocat Erasmus) pere­grinatio. Nec à vesana tantum plebecula, sed ad ipsis regni atque Sacerdotii potestatibus. Obtinuit fama celebris, me adhuc puero, Regem Angliae Hen­ricum VIII. nudis pedibus à Bashamia ad praesentiam Virginis perrexisse; conceptisque votis, monile peringentis precii obtulisse. Forte ut leniret [Page 150] Divam, quam exciso cum coenobio Penetrali, extorrem brevi relegaturus erat. In ea quippe miram deprehendit bonitatis indolem, exigui memorem bene­ficii, & ingentium (ut numen decet) obliviosam injuriarum. Moriens igitur huic legavit testamento animam, si legatam recte collocaverint Executores; qui in alio, quod sciam, nihilo implerunt ejus testamentum. Beatissimae vir­ginis imaginem Chels [...]iae delatam flammis dedit Monasteriorum excisor Crom­wellius, Anno 30. ejusdem Henrici. Holl. p. 971.

Relicta Walsinghamia, & villis in confinio croceos anhelantibus odores, [...]. Bashamiae sub illo tempore aedes condidit istius tractus illustrissimus Guliel­mus Fermer, eques potens; e cujus jam familia ad Calthorpos nuptiis transi­turae sunt.

[...]. Adjacet Fakenham, mercatorium, quod in sexto a mari lapide salinam olim praebuisse (ut testatur Liber Angliae Censualis) mirum opinaberis.

[...]. Illic ad Occidentem Rayneham, cujus sub Edw. IV. & Hen. VII. dominus suit Rogerus Townesend Eques primo Regiarum causarum (quem Attornatum vocant) Procurator, postmodum Civilium Placitorum Justitiarius. Ejus ab­nepos, homonymus animae & fortunae dives facultatibus, avitas sedes non tam novis aedibus, quam nova aedificandi fabrica magnifice illustravit.

Wissing­set. Nec procul Wissingset; quod Herbertus Bozun Normannus sub Gulielmo I. emeriti nomine suscipiens, longa nepotum serie, in hodiernum transfudit sobolem.

Mil [...]h [...]m. Et in proximis Mileham, si non alio, cunis memorabile Edwardi Coke, summi nuper Angliae Justitiarii, Legum officinae conditoris, & quod ruptis ilibus fateantur aemuli, jurisprudentiae nostrae coryphaeus. Praedicabat miri quidpiam ejus genitura; matrem ita subdito juxta focum intercipiens, ut in thalamum cui suberat non moveretur. Locum ipsum ipse mihimet demon­stravit.

Elmham. Late hic ad Hieri ramum borealem distendit alas nobile dominium Elm­ham, quod usque patrum nostrorum memoriam secularem nunquam agno­vit possessorem. Gentilium enim aevo Flaminis perhibetur habitatio, con­versisque ad fidem a Felice Sigeberto Rege & Anglis Orientalibus in Episcopi transiit patrimonium, cujus sedes Dunwici fuit. Cum vero tres illic suc­cessissent a Felice Praesules; graveque videretur tantam plebem unius credi moderamini; divisa est parochia inter duos, relictaque alteri Suffolcia cum Dunwico civitate, alter sortitus est Norfolciam cum Elmhamia. Sederunt hic deinceps ante An. Dom. 1088. viginti tres Episcopi, a sede Elmhamenses nuncupati.

Castellum praebuit in egesto colle, cui se recepisse dicitur Episcopus Nor­wicensis, cum excommunicationem, quam Innocentius IX. in Joannem Re­gem promulgaverat, edixisset, Regemque merito accendisset. A castello per cuniculum subterraneum in Ecclesiam itur ad altare; ubi sancti olim Episcopi jejuniis & assiduis orationibus incumbentes, Deum clam mortalibus invoca­bant. Ecclesiam condidit sub Gulielmo Juniore Herbertus de Losinga, pri­mus Norwicensis Episcopus; vel collapsam potius à fundamentis credideris excitasse: sedem enim Episcopalem tot annis Ecclesià caruisse, nemo cogiter. Traditur hoc dominium cum reliquo Episcopatus patrimonio in permuta­tionem, ut praefati sumus, Henrico Regi VIII. a Richardo Nix, Episcopo caeco, ut è laqueo quem inciderat semet liberaret. Rex acceptum D. Crom­wello contulit funestum donum. Securi enim hic adimitur, & effuso postea integro patrimonio, pronepos ejus D. Coko ipsum venundavit, aerumnarum satis exin conscio.

Gressen­hall. Ad australem Hieri ramum Gressenhall assidet, nobilis olim Fstotevillorum habitatio, & clientes multos in obsequium habens militare per Foliotos ad Tho. Hastings, Baronis de Abergavenni fratrem, transiit. Ejus ortus à ne­potibus Edwardus Hastinge (cum in hastiludio occisus esset An. Dom. ..... Laurentius Hastings Comes Pembrochiae) titulum Baronis de Hasting, & sine [Page 151] discerniculo insignia, coccineam scil. manicam in clypeo aureo, sibimet as­sumpsit. Gravissimas ideo lites cum de Grey Ruthino Barone legitimo è foe­mina haerede, tum in Curiis Civilibus tum in militari, per annos plurimos incredibili tuebatur pervicacia: nec victus demum & incarceratus succubuit, nec moriturus. Desiit vero ejus familia in Hugone Hasting; haereditate ad Extraneos & Brownos per filias transeunte.

Nec silentio praetereundae Cley & Blackney, portus non inhospitales, ad­versis Euripi incumbentes faucibus: eo autem prior clarior, quod nautae ejus 1 An. Dom. 1406. filium & haeredem Regis Scotorum, foederis causa ad Galliae Regem navigantem, interceperunt & Henrico IV. Regi Angliae munus apta­tis [...]imum exhibuerunt.

Melton. Jam in Boream reclinantibus, ad initium Buri fluminis habetur Melton, Constabulariorum aliquando sedes, & ex nuptiis ad Astleios veniere ..... edidit qui in illustri sub Henrico VI. duello ..... Gallum in Gallia coram Gallis vicit, laborantemque famam suam emancipavit.

Heydon. Burus tenui hinc procurrens filo, à dextra Heydon linquit, aliquando mer­catorium.

Sall. Et Sall, ubi elegans Ecclesia, à Brusio (qua ex insculptis insignibus con­jectare licet) villae domino & patrono, circa aetatem Henrici VI. condita. Cancella vero aeque elegans à quodam Gulielmo Wode, Rectore Ecclesiae & Decretorum Baccala [...]reo à fundamentis struitur An. Dom. 1440. A Brusiis vero ad Townsendos, &c.—

Repham Tria hic vicina mercatoria; Repham, tribus splendidis in uno coemiterio Ecclesiis splendidum; sed una jam diruta: Caston, ubi manus aenea (ratio­nem non teneo) praefertur Dominii Senescallo: & qua Burus ponte jungitur▪ Ailesham, quod Ducatus Lancastriae apud nos praetorium est. Mirum hic in jure nostro; Manerium à manerio, & per virgam teneri ad voluntatem domini, & per copiam rotulorum Curiae concedi; Manerium scilicet de Sex­tons de manerio de Ailesham. Loquor in forensi dialecto: sed qui nescierit ipsa feoda militaria tenta olim fuisse & per virgam & ad voluntatem domini, legat si placeat quae de feodis in nostro Archaeologo disseruimus.

Blickling. A laeva Blickling, Bolannorum aliquando sedes, è quibus orti sunt Thomas Bolen, Comes Wiltsh [...]riae, & Anna Bolen uxor Regis Henrici VIII. optimae Principis Divae Elizabethae mater, natalitium hic sortita. Cadente in fatum Jacobo Bolen avunculo Reginae Elizabethae, Blicklinga ex nuptiis ejus filiae & haeredis, ad Joannem Clere pervenit: cujus e filio nepos Edwardus, Ordinis S. Michaelis eques, eam vendidit Henrico Hobart I quiti, summo plebei Tri­bunalis Justitiario; qui aedes veteres insigni auctas impendio, familiae suae stationem posuit nobilissimam.

Wiching­ham. Ab austro, non praeteream Wichingham, clarum olim Wichinghamiorum familia; è qua sub Edw. III. floruit clarissimus nominis illius Jurisconsultus; & Bretonum, non minus insigne celeberrimo illo Episcopo Herefordensi, qui sub Edw. I. Pandectum Juris nostri Regii concinnavit; quam facinore Joannis Breton sub Henrico III. vulgatissimo. Godofredus de Millers, Eques genere & militia clarus, concubitum ambit filiae Joannis Breton. Illa, patre consulto, noctem pangit, qua cubiculum Virginis eques clanculum subrepit; Captus vero ex insidiis gravissime primum vulneratur, deinde flagris caesus acerbissime per distentos ad trabem pedes tollitur, mortemque ardentius im­precanti abscisis membris virilibus, mutilatus est. 2Accidit & eodem tempore dapsili c [...]idam Clerico simile infortunium; sed commotus hisce Rex praeconia per provincias edixit voce, ne quis praesumat, nisi pro conjuge, adulterum mem­bris mutilare genitalibus.

Trans Burum in conspectu Blicklingae, pare velut distantia, habentur Cal­thorp, dictum à frigore; & Erpingham; viculae tenues & jam obscurae, sed fe­lix utraque è celebris & antiquae familiae natalitiis. Illa Calthorpiorum, pro­paginem [Page 152] late distendentium; haec Epingamiorum fortiter dimicantium: è quibus unus fuit e XV. viris qui Henricum Ducem Lancastriae ab exilio ad regni molimina redeuntem, comitatus est: & qui Henrico V. in Agencor­tensi proelio fortissime dimicaturus, rudem ejecit, ineundae pugnae tesseram auspicatissimam.

Baning­ham▪ Hic à latere Baningham, ubi Rex Henricus I. 5. marcatus terrae dedi [...] Ge­rardo Tasard tenendum de eo per Serjantiam balastriae (ut inquiunt schedae) i. e. ar­cubalistae.

Baning­ham. Reflector paululum in occasum ad Berningham, à Berninghamis per He­thersetos ad Pagravos ducta: e quibus Johannes Pagrave Jurisconsultus aedi­ficium recoluit & filio dimisit.

Bacons­thorp. Et Baconsthorp, ubi à Johanne Heidon Jurisconsulto sub Henrico VI. po­tenter excrescens Heidonorum familia, jam in deliquium regressa est.

Gresham. Adjacet Gresham, nomen faciens ditissima exinde prosapiae; quod Thomas Gresham, Praetor Londinensis, & Regalis (ut vocant) excambii conditor, florere incoepit.

[...]lbirg. Hinc in boream mari vicinior habetur Felbrig; nomen & sedem praestans vetustae & effaetae familiae Felbriggorum; è qua D. Simon de Felbrig, Eques inter nostrates celeberrimus connubio potitur Margaretae, filiae Ducis Thasae, Regis Bohemiae nepotis, è qua Alanam filiam & haeredem suscitavit, nuptam Gulielmo Tyndall, patri Thomae Tyndall, qui genuit Gulielmum Tyndall, ad creationem Arthuri Principis Walliae balteo cinctum militari, & jure Margaretae proaviae suae, haeredem regni Bohemiae denuntiatum. Sic Heral­dorum nostrorum fasti; sic me puero fama celebris.

Cromer. Gim­mingham. Jam ad litus reversus, Cromer mercatorium Neptuno contritum inimico prae­tereo; Gimminghamiam accedens, Ducatus apud nos Lancastriae sedem pri­mariam. Ingens illic aula columnis distincta, quarum ea olim ratio fuit, ut supra columnam suae conditioni designatam nemo ascenderet. Retinetur & prisci moris consuetudo: a colonis manerii quos Socmannos olim, hodie Te­n [...]ntes in Soccagio vocamus, non tam censum pecuniarium quam opera rustica, & ad victum vestitumque pertinentia repetere. Moris ut Romanis insoliti, Tacitus meminit Cisalpinis omnibus in usu. Nobis vero mutavit primus Rex Henricus II.

Bron­holm. Nec procul in crepidine Promontorii Bronholmensis, Coenobiolum ali­quando S. Sepulchri, à G. Glanvilla censu pauperi constitutum; sed ex cruce quae illic colebatur, auctius indies & per quam celebre. Liceat dicere de hàc, quid proditum. Factam sine dubio (ut asseritur) de ipsa cruce in qua pependit Dominus noster; ad longitudinem pene humanae manus, cum du­plici ligno per transversum. Ferri solitam inter alias Reliquias à Patriarcha & Episcopis ante Baldewinum Imperatorem Constantinopolitanum (Flandriae prius Comitem) in aciem progressurum contra Crucis inimicos; neglectaque fortuito semel aliquando, caesum cum exercitu Imperatorem. Erat tunc Constantinopoli, Capellanus quidam Anglicus Divina inter alios celebrans in Capella Imperatoria, & reliquiarum agens custodiam; qui cum omnia despe­rata videret & perturbata, reliquias & pretiosa multa clam surripiens, An­gliam venit; & quaedam Monacho S. Albani vendidit, quae Parisius 1fatetur, magna illic fuisse veneratione cum haec ipse scriberet, id est, An. Dom. 1223. Crucem vero nullis cederet Capellanus; qui & ipsum & duos filios suos par­vulos in ordinem non susciperent Monachatus. Repudiata conditione à di­vitibus multis Monasteriis, ut fraudem suspicantibus; ad Bronholmiae devenit Prioratum, aedificiis & inopia jam tum laborantem. Pacta vero illic condi­tione Prior & Fratres suscipiunt Crucem, & in honestissimo Oratorii sui loco magna cum reverentia & laetitia collocant. Subsequitur mox miraculorum ingens fama, & non solum ex tota Anglia sed è longinquis regionibus huc [Page 153] concurritur. Coenobitis interea luculentus quaestus. Hujus meminit sub ex­itu quarti abhinc seculi 1 Galfridus Chaucer in Praepositi lasciva Fabula:

And with the falle out of her sleep she braide,
Help holy Cross of Bromholme she said.

Paston. Waxham. Hic in littore una sedent Paston & Pastoni, Villa tenuis, gens ditissima.

Legendo à Pastona littus occurrit Waxham, sedes Woodhousiorum familiae, ortu & insignibus ab illa Kimberleae discrepantis; sed clarae pariter. Hic Gu­lielmus Woodhouse Eques, Jacobo Regi nuper in facetiis, & familiae corru­entis suscitator, primum apud nos instituit decipulum Anatarium, peregrino nomine a [...]oye, i. e. cors, seu cavea nuncupatum. Stagnum siquidem valde latum est, sed parte una arundinibus septa, in angustiam porrectum. In hac angustia, nutriuntur indies anates aliquot proditionis causa mansuefactae, quae totam regionem circumvolantes, sui generis volatilia redeuntes ducunt catervatim in stagni latitudinem. Apparente jam tum caute in extremitate latitudinis stagni cane subdolo ad hoc edocto, secedunt volatilia remotius angustiam versus, prementeque adhuc cane, sed à longe, & in aquam alias semet immergendo alias furtim efferendo, capescunt tandem ipsam angustiam. Palam nunc exultat canis; eoque viso, sidunt aves proditoriae, & dum in alas se conjiciunt advenae, retibus obruuntur anatarii.

Praedantur anno uno in hujusmodi decipulo, tot quot vaeniant aves mille coronatis Gallicis, & (ut audivimus) multo supra; in vicinorum grave ad­modum praejudicium, qui hoc modo & aucupii coërcentur voluptate & men­sarum pristino supplemento. Germanis igitur superioribus capitale perhi­betur, hoc erigere.

Ad meridiem Walsham, & Worsted.

Cowshil. Buri in margine, Cowshil est, cui inter privilegia indulsit Henricus III. ut servus qui hic per annum manserit, exiret liber.

Freken­ham. In adversa ripa Frekenham-hill, ubi Turnus Vice-Comitis toti annuatim in­dicitur Comitatui.

Crostwick Vicinum Crostwick obtinet. Crassorum sedes, vulgo le Grosse, equestris sub Henrico III. familiae.

Sprow­ston. Nec longe Sprowston, aedificiis à Joanne Corbet Jurisconsulto (Norwicensi­bus oriundo) adornatum, praediisque auctum à Milone Equite aurato, filio ejus: jam cum Milonis pronepote in tutela Regis est.

Redeo ad Burum, qui depressas saepe planicies superfluens, nobiles multas edidit piscaturas, & Percarum genus celeberrimum. Memorabile est quod Rand­worth.ab accolis accepi: Ranworthae aliquando 120. modios piscium, duobus circum­clusorum retibus, depraedari.

Ludham. E regione sedet Ludham, ubi aedes non Episcopales, sed Episcopi Norwi­censis in rure unicae. Officinam fuisse dicuntur agriculturae Abbatis S. Bene­dicti de Hulmo, vulgo Grangiam.

Subest in palude tremula ruderum ejusdem Abbatiae moles ingens, quae ex insculptis insignibus sculpturam prodit recentiorem. Fundavit tamen eam Rex Canutus in honorem S. Benedicti, cujus ut apud Anglos ordo vetustissimus, S. Benne [...]ita & regula gratissima & frequentissima. Tanta eam admiratione amplexus est fortissimus Monachatus propugnator Rex Eadgarus, ut cum Monasterio S. Aethelredae Eliensis, 2quod instaurabat Wintoniae Episcopus Ethelwoldus, 40. hydas terrae apud Hatfeld elargitus esset; nobile manerium de Sudburne addidit in Coronidem, sub conditione quod Ethelwoldus regulam S. Benedicti de Latino in Anglicum transmutaret.

Acle. Festinans jam Burus ad Hueri confluvium, Acleam à dextris praeterlabi­tur, quam Ead [...]othus filius Goderici Abbatiae S. Benedicti Ramesiensis dedit.

[Page 154] Flegg. A sinistris Flegg peninsula frumento dives & ubertate soli, primam exce­pisse videtur Danorum coloniam; tum quod portui cui appulerunt, sit vici­nior, natur [...]que munita beneficio; tum quod exiguo suo ambitu 13. villas comprehendit in by desinentes, voce Danica & villam seu habitationem signi­ficante. Hinc nos hodie a B [...]-law dicimus, quod villa quaepiam sibi consti­tuerit; seriptorib [...] Dani [...]s Bi-laginem, a by pro villa, & lage, quo nos (ut solemus▪ g in [...] mutamus, pro lege.

Yarmouth nee verum Garianonum, nec à vero alienum est. Sedes enim utri­que ad ost [...]um fluvii Garienis, qui & utrique nomen indidit. Huic vero à canali vetere, illi a recentiore. Ambo autem in illo littoris spatio, quo An. Dom. 1495. Cerdicus Saxo cum Cinrico filio ejus & 5. navibus portum in­grediens, Britannos profligavit obvios, portuique nomen, Cerdicis oram, ut Aethelwerdus refert, dereliquit. Sub quarto inde lustro, Stuff & Wuthger pa­riter saevientes, hanc diripiunt regionis partem.

Ambo autem in illo littoris spatio, quo sub Comite littoris Saxonici prae­sidium agebant Stablesiani equites; qui proprie suberant Magistro equitum in occidente Duces limitanei (Panc. p. 86. b.) Sed ut alii Magistrorum milites, alus Ducibus & Comitibus limitaneis merebantur: sic hi sub nostro. Erant vero sub hujus nomine vexillationes aliae plures, ut Stablesiani primi, secundi, tertii, Africani, Italicani, &c. sed an ab aliquo eorum nostri deferendi sint, an per se Britannicani appellandi, aliis linquo. Dicti omnes à loco unde orti sunt: & forte legendum putat Pancirollus p. 87. a. Stabaliani; qui fuere Gal­liae


populi. Stablesianorum symbolum nescio an omnium, vel corum tantum, qui in Occidente sub Magistro Equitum militabantur, sic in Notitia Impp. describitur, & à Pan­cirollo qui in MSS. depictum vidit, enarratur, fol. 135.

E veteris Garianoni exequiis succrevit novum, & ut ma­ritum uxor fluvium sequitur exulantem. Longo tamen ut videtur intervallo. In appulsu enim Saxonum nulla hujus vel alterius mentio: sed in ipsa ora velut nuda & anonyma Cerdericus conscendisse fertur; nomenque inde, ut Aethel­werdus meminit, Cerdericshore imposuisse.

Ut Venetiae in arenis maris Adriatici sedem sibi è ruinis Aquilegii eluctatae sunt; sic nova haec Jermutha nostra è deliquio vetustioris originem sumpsit & incrementum. Sita est enim in lacinia terrae, quae olim arenarum moles suit; ab Oriente, salso mari; ab Occidente, fluvio salso (vel ut Isthmus) latitudine interclusa; longitudine, 2000. passus non excedens. Quod miraberis tamen, aquis abique dulcibus exuperans. Mare exhibet Xerxianae classi satis fidam stationem, fluvius portum tutum proebet, qui 600. naves aequore suscipiat languescenti. Ora igitur Cerdici olim, & Saxo­nibus excip [...]endis commodissime exposita. Arenam obruisse fluvius dicitur usque ad Canuti Regis tempora, Annum circiter 1008. Cedente vero tunc mari, & arenis indies latius atque firmius semet efferentibus; conveniunt illic sub Edouardo Confessore & ingressu Normannorum, non tantum Nor­wicenses & vicini plurimi de Norfolcia Suffolciaque; sed Portuenses ipsi qui hoe aevo soli habebantur Angliae piscatores, Galli, Belgae, aliique peregrini artem exercentes piscatoriam. Halecum enim nobilissima hic Europae pisca­tura & Septembris exitu (quem cum Danis igitur Fish-month appellemus) per totos plerumque 40. dies, quod immunium illic hodie nundinarum spa­tium est; primumque papiliones & tuguria contra Jovem inimicum, sed ex licentia Regum, honestiora statim domicilia & ad fastum protinus exaedisi­cant. Tempore Gulielmi Rufi, Gulielmus Herbert Norwicensis Episcopus, (de Losinga, id est, mendax cognominatus) Capellam in hac arena condidit pro salute animarum illic appellentium: & post paucos annos, non longe à [Page 155] Capella, Ecclesiam perillustrem S. Nicolao dicatam, piscatorum vero ditata [...] oblationibus & dotatam. Hinc statio illa, Roda, (i. e. statio) S. Nicolai ap­pellatur. Novae jam villae Rex Henricus I. anno regnis sui 9. Magistratum imponit, Regia functum authoritate, quem (de more Normannorum) le Provost, i. e. Praepositum appellabant. Et cum hoc sub regimine, centenos floruisset annos, Joannes Rex 18. Mar. regni sui 9. villam in Burgum, ho­mines in Burgenses constituit, de Jermuth nuncupandos: & Burgum ipsum Burgensibus dunisit ad firmam (ut loquuntur) feodi in perpetuum. Ex con­cessione Henrici III. se muro claudunt & fossato, 100. jugera continentibus, A. D. 1230. & in An. 1240. gubernatur Burgus per Balivos suos.

Edouardus I. & II. aquam illic nomine honestarunt Portus Jermuth, Tro­numque & sigillum dictum Coquet pro oneratione & exoneratione navium in­stituerunt. Edouardus III. (qui hinc maris cognoscatur Dominus) Burgo locum in alto mari distantem 7. Leucas, vocatumque Kirkeley Roade univit in perpetuum; opibusque & potentia sic tunc Jermutha floruit, ut An. Dom. 1350. dicti regni 25. ad Caleti obsidionem 43. emisit naves & 1075. nautas; quod à nullo portu Angliae factum est si Fowensem excipias, qui licet quatuor naves plures exhibuit, nautas tamen 305. pauciores; Londinum ipsi 25. tantum naves & 419. [nautas] exhibente. Frequentia populi ex hoc dig­noscitur, quod paulo ante in uno anno 1341. 7000. peste rapiuntur; cum sub initio Jacobi Regis 5000. tantum illic aestimarentur. Possidet quod sciam nullas hodie hoc (ut alia) municipium possessiones; sed instar filiorum Aeoli atque Thetidis (ut in Inquisitione 10. Henr. III. compertum est) maria & 4. ventos. Repetit quod deseruit mare; & cum aliquando Isthmus, quo situm est oppidum, ad sextum protenderetur lapidem, hodie in secundo ter­minatur; & ne vicinius proruat ingenti cohibetur ..... quae singulis annis, 560l. [f. resarcitur.]

Retia illic Piscatoria Londinum à Jermutha, i. e. 100. mill. porriguntur; quod cum in Parliamento 35. Elizabethae palam audissem affirmatum, & ut certiar fierem, sciolum convenissem; respondit, Compertum fuisse, suffectura ea ad totum spatium inter Jermutham & Belgiam occupandum, dum ab una navi ad alteram (piscatorum more) jungerentur. Mirabiles quidem in no­stris auribus; sed aestimata alias legimus ad 50000. libras Anglicanas.

Veterem Garrianoni sedem oblivioni tradidit alveum destituens fluvius, sedisque & fluvii incerta vestigia. Videntur eam duo vendicare; Burgh­castle in agro Suffolciano, quod meridionali fluvii lateri hodie incumbit; & à Boreali 4. distans mille passus Castor villula. Romanam ostendunt ambo spe­ciem; illud quadrilateram oblongam castrametationem muro coronatam, sed remotiorem à mari & loco paludibus & angustiis ita impedito, ut eque­stribus male conveniat turmis; haec in ipso litore, muri etiam & muniminis rudera prodens, campestri loco equitumque discursioni litoris praesidio quod huic Comiti, huic Equitatui demandatum fuit, commodissimo. Interiora enim & Mediterranea Comes alius tuebatur, peditumque magis cohortibus quam turmis Equitum. Garianonum igitur Castorem pono, Camdeno licet Burgh arrisit. Conducit in sententiam nostram, Castor, nomen à Romanis sumptum, praesertim cum in tota Anglia, nihil (quod sciam) hujus nominis reperietur non Romanum. Convenit & ipse locus, arenarum oppilationi & diversioni fluminis oportunior, ornithiis & Euro-Aquilone imperantibus.

Orientem solem ulterius non videt Norfolcia: remeandum igitur ad Occi­dentem. E Yermutha exeuntes statim recipit Burgh-castle, ad Hieri margi­nem, sed in Suffolcia collocatum, quo nos igitur non commorabimur. Si­tum tamen dabimus & effigiem, ut Romanam fuisse intelligas: sed an Sta­blesianorum equitum statio, cum fluminibus & palustri impediretur solo, li­cet in acclivi castrum, non est verisimile. Si autem Cnoberi urbs fuit, & Monasterium (de quo Beda l. 13. c. 19.) à Judaeis postea habitatum tradunt incolae, & fidem auget, ejus ducens ad introitum via antiqua, Judaeorum hodie [Page 156] appellata. Tenebat aliquando hoc castrum Radulfus filius Rogeri de Burgo per Serjantiam; quam cum dimisisset Gilberto de Weseham, & ille Regi Henrico III. eandem dedidisset, Rex 20. Aprilis, regni sui 20. coenobio S. Andreae de Bromholme, cum omnibus adjacentiis conferebat.

Ad Hieri cum Wavenio coitum, tertio à Yermutha miliari, è paludibus [...]vix se erigit Reedham villula, Barneorum sedes, ab arundineo situ nuncupata, sed miraculoso Lothbroci nobilis Dani appulsu aeque celebris, at infelix. Lugubrem suscitabo narrationem. Lothbrocus hic à stirpe regia, cum duos genuisset filios, Hinguarem atque Hubbam, & solus aliquando in navicula, aves per vicinas Daniae insulas, cum accipitre depraedaretur, correptus est subita tempestate per maris latitudinem, & in Hieri ostium usque Reedham deportatur. Peregrinum incolae (ut invenerant) solum cum accipitre Ead­mundo Regi East-Auglorum, cujus ad decimum inde lapidem erat Castor Regia, detulerunt. Formam & fortunam viri Rex miratur, vultuque & mo­ribus adeo serenis excipit, ut Lothbrocus subito patriae desiderio non tenere­tur. Capitur & aulicorum studiis, praesertim venatorio; quo ut fiat peri­tior, Berno se adjungit venatori Regio, Magistrumque sic brevi superat; ut invidia percitus, hunc ille inter nemora seductum clam peremerit. Deside­rato Lothbroco, canis quem alerat leporarius interfecti corpus vigil tueba­tur, sed coactus fame alias atque alias Aulam petit: observatusque à ministris Regis, subsequentes ducit ad interfecti corpus. Bernus sceleris reus agitur, & judicio Curiae, Regis Lothbroci imponitur naviculae, solus & sine omni instrumento nautico; fluctibusque & ventis creditus, Daniam fato advectus est. Cognita illic navicula, tormentis arguitur de Lothbroci nece; & se ut liberet, interfectum mentitur ab Eadmundo Rege East-Anglorum. Saevissi­mam jurant Hingar & Hubba ultionem, collectoque 20000. armatorum ex­ercitu, ductore Berno, totam East-Angliam ex improviso diripiunt. Ead­mundum Regem brevi capiunt, flagris caedunt, confossumque deinde sagittis, & gladio detruncatum, inter Divos referendum excarnificant. Sic cum Rege animam efflavit regnum East-Anglorum, An. gratiae, 870. die. 12. Calend. De­cembris, quae Eadmundo hactenus celebratur in Calendario.

Ex his videtur Reedham villam hanc parvam, magna Yarmutha antiquio­rem esse. Nam si habitatoribus frueretur Yermutha, cum Lothbrocus huc appulsus est, opem proculdubio clamore implorasset, attritusque fame & iti­nere, ulterius non perrexisset in fluvio. Decurrit hinc fluviolus ad Romanam alteram munitionem, sed an Ventam illam Icenorum, qua nihil olim apud nos illustrius, ego subito non definiam. Mirum enim videatur & inconsul­tum, magni celebrisque populi metropolim ad ignobilem collocari fluvium, cum in viciniis ipsis haberetur aliud nobilissimum.

Hinc inter Waveney & Hierum nihil quod sciam memorabile, donec sub [...]10. pene lapide ad Hales venieris; ubi Jacobus Hobart, Henrici VII. Attor­natus pluribus familiis initium dedit.

Haileston Pari distantia Waveneium occupat mercatorium Haileston. Inde in Sep­tentrionem Sheltonrediens, per Shelton, quod antiquos suae appellationis dominos nu­per Tasburg.exuit, ad Tasburg itur.

[...] In Wenti & Hieri commissura, & Wento magis quam Hiero Norwich assidet. A north dictum quod boreale, & wic quod castellum, vicum, portum, sinum seu anfractum fluvialem, Saxonibus nostris significabat. Convenit igitur, quam­cunque elegeris significationem; sed non aeque omnis. Si de sinu dixeris, urbs non in sinu fluvii sed in dorso ponitur, nec ad partem quidem borealem sed occiduam magis, unde & West-wich potius quam Norwich diceretur. Saxo ipse Alfricus nostras, Wic exponit de castello, & huc nihil accommodatius. Effecit enim ipsa ratio, ut Castellum boreale diceretur; cum ad tertium inde milliare versus ipsum Austrum, aliud haberetur castrum regium, quod, ex­tinctum hodie, Caster tamen appellatur.

[...] S [...] a castro igitur nomen urbis, castrum nomine proculdubio est antiquius; [Page 157] & forte ipsa urbe, quod in ejus habeatur meditullio. Sic Roma Capitolium. Licet enim fossam propter formam orbicularem & immanem amplitudinem, Danorum censeam vel Normannorum opus, arcem utique Normannorum; castrum tamen ab antiquiori seculo illic exstitisse, & nomen suggerit, & Charta quaedam Henrici I. qua enixius ab Harvaeo, primo Eliensi Episcopo [rogatus,] Ecclesiam illam liberam facit de jugo servitutis, & custodia, quam ca­stello Norwici debebat. Imponi non poterat ista servitus, dum ab Episcopis, Monachis aut Monialibus possiderentur terrae Ecclesiae, si prius non fuisset debita; ideoque debitam fuisse dum in secularium exstiterunt manibus (i. e. Tomberti Australium Gerviorum Principis, qui Aethelredae uxori suae, primae Eliensis Monasterii fundatrici, circiter An. Dom. 677. eas dedit) necesse est. In Ecclesiasticorum enim dum erant possessione, magis (inquiunt LL. Edw. Confess.) in Ecclesiae confidebant orationibus, quam in armorum defensionibus. Ca. 11.

Amplum etiam fuisse Norwici castrum ante Normannorum ingressum, ex eo liquet, quod in Domesdei legitur Ibidem LXXXI. mansurae vacuae in occupa­tione castelli.

Nobile etiam tune fuisse videtur hoc Norwici castrum, & velut totius Ice­norum Provinciae metropolis, cui insignis ille Geruiorum Princeps, & tam insignis Insulae illius pars (si non tota) deservirent. Primo etiam ad East-Anglorum Reges, postea Praesides, quos alias Aldermannos, alias Duces, alias Comites appellabant, pertinuisse. In instauratione igitur Monasterii, Aethel­dreda fratris sui Adulphi Regis East-Anglorum opem implorat: & in trans­latione Monachorum inde Betrichswordiam, sub Canuto Rege, An. Dom. 1020. idem facit Leofinus Abbas à Turchillo Comite.

Quonam olim frueretur nomine, non me torqueo. Proculdubio vel Saxo­nico Norƿic; vel (quod Camdenus cedit) Britannico Caer Guntum; vel (ut Lhuydus habet) Caer guynt. In Historiis (fateor) raro occurrit vox alter­utra: rarius quippe ipsae historiae. Caer Guntum vero quasi Wentopolis, i. e. civitas ad Guntum fluvium (quem Saxones more suo G. in W. mutantes, Wen­tum pro Wuntum dicunt, Romani Ventam.) Diceretur aeque & Hieropolis, ab Hiero fluvio. Sed quaeritur an haec Venta illa Icenorum apud veteres & An­toninum? Negaveris forte & affirmaveris in aequilibrio.

Cossey. A Norwico per adversum flumen ad Cossey remigatur; ubi junior sed clara Jerneghamiorum familia sedem obtinet luculentam; primogenita illa quae ad Somerle-town in Lothingland Suffolciae non pridem flourit, jam extincta.

Bou­thorpe. Prope hic ad Austrum, Wenti sinum alium videas Norwicensi similam: cujus cum in dorso pendeat, ut Norwicus, villula, non à sinu nomen habet, sed à dorso, Bouthorpe, quasi à bout, i. ambitu, & thorpe, villula.

Intwood. Kettring­ham. Ab hoc sinu per Intwood quod Greshamos excussit nuper, ad Kettringham contenditur, Heveninghamorum sedem, numerosum Equitum seriem pro­ferentium.

Wind­ham. Late hic in centuria (quae à 4. montibus, ubi convocari solet, nuncupatur Forehow) distendit alas Wimundham, vulgo Windham. Albeneiorum, Comi­tumque Arundeliae, eorumque haeredum, subinde ab ingressu Normannorum opulenta possessio, donec à Knevettis ad Henricum Hobart, Capitalem Justi­tiarium Civilium Placitorum, venditione devenit. Coenobio claruit Nigro­rum Monachorum, à Gulielmo de Albeneio pincerna Regis Henrici I. con­dito, Sanctoque Albano primitus ascripto: coenobium vero, crebris Albe­neiorum, Comitumque aliquot Arundeliae sepulturis; ubi de Fundatore hoc Epitaphium

Hunc Pincerna locum fundavit, & hic jacet; illa
Quae dedit huic domui, jam sine fine tenet.

Hengham Huic radios Hengham porrigit; ubi Rex Aethelstanus 60. Hydas, i. e. caru­catas terrae Aethelwoldo dedit, Episcopo Wintoniensi, qui easdem cum Ead­garo Rege mox post annum 970. commutavit pro 40. hydis & dimidio in [Page 158] Insula Ely & adjacentibus; cum jurisdictione & immunitate 7. Centuriarum & dimidiae, quae hodie S. Aethelred s Liberty appellatur. Mercatorium est, & suos habuit Barones; sed clarius nomen à Radulpho de Hengham.

Kymb [...]ly. A dextris Kimberley egregiis adornatur Woodhousorum aedibus, a Johanne Woodhouse equite nascentium.

A [...]il­burgh A sinistris dum in meridiem tend [...]us, merito nos moratur Attilburgh; ut sopitam ejus dignitatem suscitemus. Atque id in primis moneo: Nusquam occurrit appellatio burgi, nihil innuens antiqui inuniminis; puta urbem, castrum, turrim, vallum, sepimentum [...]e militare: majori autem, qua apud nos frequenter deprehenditur, Castrum; Ʋrbem, Civitatem. Recte igitur Little­tonus, Quae hodie (inquit) civitates, olim dicebantur burgi. Nec pro civitate, alia pro veteres nostros Saxonas seu recentes Germanos appellatio. Perhibetur celebri fama Attilburgum non solum fuisse civitatem, sed & aliquando Regiam & Provinciae Metropolim. Famae non deest antiquae paginae testimonium▪ si Joanni de Bramis (Waldei Historiae ante 200. annos authori) stet, (quod pe­nitus non faciam.) Refert Joh. Bramis, Atlynge quendam, Norfolciae Regem (qui sub ..... Christi seculo floruit) in defensionem suam eam condidisse adversus Rond, Thetfordiae Regem, muro etiam cinxisse atque fossa, & qua­tuor portis, quatuor turres addidisse. Ductum insuper a conditore nomen. De auctoris fide non digladiabor. Monachus fuit Thetfordiensis, & historiam transtulisse refert, tum ex exemplari Gallico, tum & Anglico, verbis labo­rante utroque interdum exoletis: sed & Gallicum, pro genio seculi & illius populi multa invexisse.

[...]. In confiniis Attilburgi, villulam optimam (sic Besthorp sonat) proavorum sedem habitat eques primarius—Et jam in tractum pervenitur, sylvis divitem atque pascuis, quo primas obtinet Boccinum, oppidum vetus, ad Bu [...]k [...]n­ham▪I [...]idem fluvium (ut Lelandus ponit) situm; & nunc Buckenham, non à fagis (ut Camdeno visum) quae in tota hac Provincia nusquam (quod sciam) re­periuntur, sed a cervorum copia (quibus ut circumfusa n [...]mora olim abunda­rent, ita neque hodie destituta sunt) nomen habet. Nam hos item Dani atque Saxones Bucken vocant. Pinguior autem ista Comitatus portio, cum villis plurimis adjacentibus, & officio Pincernae Regii, Gulielmo Albeneio à Conquestore data perhibetur, castrumque ille Buckenhamiae condidisse; cum tamen in excisenda patria nostra inter Normannos nulla ejus mentio fiat in libro Censuali, qui Domesdei nuncupatur. Quandocunque autem facta fuerit haec donatio; certum est & fieri aliquando, crevisseque ejus posteros in Comites Arundeliae; sed deficiente sub Henrico III. haerede masculo, insignis haec haereditas inter foeminas dispartita est: cessitque jam castellum de Bucken­ham cum nobilissimo mancrio Wimondham inter alia multa per Tatsallos, Calios, Cliftonos, ad Knevettorum prosapiam, e qua hodie Philippus Knivet Baronetti gaudet novo titulo; sed patrimonium vetus adeo labefactavit, ut vix Buckenham cum castello r [...]maneant integre.

Kening­hal [...]. Inter villas plurimas quas Keninghal hic trahit in suam ditionem, subest ad Austrum Garbusham, alias Garbelsham, & Garbolisham, quod Wilfricus Abbas sextus Eliensis, antequam Ecclesia illa in Episcopatum eveheretur, Gudmundo fratri suo inter alia cessit, ad vitae spacium. Sed direpta interea à Norman­nis Anglia, Hugo de Munford miles Normannicus, haec & caetera cum à Gudmundo tum a Monasterio in perpetuum abrasit. Cito vero transiit Garbulsham ▪ut videtur) ad dominos villae Keninghal, cujus in vestibulo jacet. Amplum enim hoc, & sedes olim potentissimorum Baronum.

Lopham [...]. Hic limen Norfolciae tuetur Lopham è cujus latere velut ab eodem alvo enascentes discordes fratres, Isis minor & Waveney, fluvii, contrariis alveis hic per Dille in oriente Garienum petit, ille per Thetforde in Occidente Lennum Regis; suo ambitu totum Norfolciae australe Hemisphaerium com­plectentes.

Thetford Thetfordiam (antique Tedford) dici à supposititio fluminis nomine Thet vel [Page 159] Sit, vix assentior. Saxonibus liquido sonat vadum populi, ðeod enim populus, ƿord vadum. Fuisse tamen Antonini Sitomagum non inficior; male licet de intervallo convenit à Venta Icenorum; vetustamque admodum, ut cae­tera omnia in magus (quod urbem sonat) desinentia. In antiquae tabulae fragmentis Simomagus, alias Sinomagus; quod utrumque mihi Icenorum ur­bem velut primariam olim, & metropolin tractus istius fuisse suggerit. Prior enim vox Simomagus Ptolemaeo quadrat, qui Icenos vocat Simenos: & vox posterior Sinomagus dicit qu. Icenomagus. Nec Caesari dissonat, qui Icenos (juxta Camdeni lectionem) Cenos vocat, ut alii Hispanos, Spanos. In historiis autem non omnino sonuit Sitomagus nomen; nec ante Saxones recentiores Tedford ipsum; nec Jo. Brami Monacho adhibueris aurem de Rondo quodam strenuo istius urbis Rege, vicinisque infestissimo, memoranti. Floruisse eum refert Vortigerni seculo, torpentibus & cedentibus jam Romanis, grassanti­bus Pictis & Scotis, enervatis Britannis, Saxonibusque cumulatim irruentibus. Sic ut de Britannia jam dicamus, ut de Israel olim, Nullus jam Rex in Israel. Occupanti enim omnia jam ceduntur, & ubique tot Toparchae, (quos Scri­ptores veteres appellabant Reges) quot tyranni, munita possidentes oppida vel territoria. Praedones siquidem non Reges; de quibus recte Porphyrius impius apud Ninnium; Britannia fertilis provincia tyrannorum. Brit. pa. 36. Fertur & ex historia anonyma fuisse olim scholasticorum studium Thetfordiae (Caius, p. 148. & fidem astruit ipse Beda, lib. 3. c. 18. de Sigeberto ita lo­quens: ‘Patriam reversus, ubi regno potitus est, mox ea quae in Galliis bene disposita videt, imitari cupiens, instituit scholam, in qua pueri literis erudirentur.’ Nollem fraudi esse Cantabrigiae, quae locum hunc ad suam trahit Academiam; priorem tamen agnoscit ipse Caius—‘Egregia olim schola è plebeis; cum per aliquot secula ex edicto Gregoriano prohibe­rentur Angli gymnasia celebrare propter Arianam & Pelagianam haeresim, aliosque quosdam Britannorum errores.’ V. Caium.

Veteres urbis aerumnas hodie praedicant fossae vicinae militares, egestumque plurimo cespite propugnaculum; Danorum potius quam Saxonum opus: proculdubio non Romanorum, qui nec tanta elatione nec tam exiguo am­bitu castra metabantur. Hanc, è Northymbria regressi (Anno circiter 870.) Hungar & Hubba, Danorum occupant conductores truculentissimi. Quibus dum congreditur Orientalis nostrae Angliae Rex piissimus Eadmundus, in fu­gam est coactus, obsessusque in castello de Foamingham, demum capitur, sagittisque, arbori alligatus, transfixus, & truncatus capite: decerptumque deinceps regnum ejus ad Occidentales Saxones est delatum. (Vid. Holl. & Hunt.)

Sub ingressu Normannorum, Arfastus, Capellanus Gulielmi I. & jam tractus hujus Pontifex, Episcopalem sedem ab Helmhamia transtulit Thet­fordiam quod ab antiquo municipium esset Episcopatus sui, & jam cautum esset Concilio, ut Episcopi sedes suas non in villis, sed in urbibus collocarent. Secundus vero successor ejus, Herbertus de Losinga, Norwicum detulit. Apud Episcopos tamen Norwicenses annos totos 500. mansit Thetfordiae do­minium. Cum vero sub Henrico VIII. Ricardus Nixus Episcopus incidit in crimen diminutae Regiae potestatis (quod Praemunire vocant) bonisque omni­bus & perpetuo carcere mulctandus esset; gratiam ut redintigraret, universa Episcopatus praedia (viz. 30. vel supra, eximia maneria) in Regis patrimo­nium transcripsit: acceptis (Glauci & Diomedis permutatione) Abbatia S. Benedicti de Hulmo cum suis, aliisque nonnullis praediis. Quae ut certius, annecterentur Episcopatui, decreto Parlamentario anni 27. Henr. VIII. sancitum est, ut Episcopus Norwicensis semper Abbas S. Benedicti de Hulmo habeatur, & e contra Abbas S. Benedicti de Hulmo semper utique Episcopus Norwicensis: Sic unus hodie nobis Abbas. Sed quoniam mentionem fecimus tantae cladis nobilissimi istius Episcopatus, casum referam, quo Regi tam ob­noxius fit Episcopus.

[Page 160] Anno 25. Henrici VIII. Regiarum causarum Procurator Billam quam vo­cant de Praemunire exhibuit in Banco Regis versus Episcopum Norwicensem (nomine Richardum Nix) tune in custodia Marescalli existentem. Billa quae di [...]itur Indictamenti, suit hujusmodi. Quod in villa Thetfordiae in Comitatu Norfolciae, ultra hominum memoriam, consuetudo extiterat; ut causa omnes [...]l [...]siasticae in eadem emergentes villa, coram Decano villae ejusdem, qui ibidem peculiar [...]m habuit jurisdictionem, terminarentur: & quod nullus extra dictam villam in placitum traheretur in aliquam aliam Curiam Christianam pro causis Ecclesiasti [...]is, nisi coram eodem Decano: & si aliquis contra dictam consuetudinem tractus esset in placitum coram aliquo alio judice Ecclesiastico, & hoc praesentatum for [...]t coram Majori ejusdem villae, delinquens ille forisfaceret VI. sol. VII. den. Et quod quidam N. sectam prosequebatur in consistorio dicti I piscopi, pro re exorta infra dictam vil­lam Thetfordiae, & praesentatum hoc fuit coram Majore, & quod ipse pro delicto isto forisfaceret VI. sol. VIII. den. Ob hoc Episcopus Majorem citat generaliter pro salute animae ad comparendum coram semetipso in aedibus suis Hoxomi [...], in Comitatu Suffolciae: & apparente eo, tanquam per libellum, questus [...]st ore-tenus de praedi [...]ta materia, injunxitque eidem sub poena ex­communicationis, ut quod praesentatum fuit, adnihilaret. Episcopus petit at Consilium [...]ruditum (sic Advocatos vocant) sibi assignaretur: & hi asse­cunt [...]m id quod praesentatum fuit, tum & ipsam consuetudinem vacnam [...] propterea non posse dici contra coronam & dignitatem regiam; nec [...] tractum esse ad Episcopum ad aliud examen: quod in nulla Curia exa­ [...]ari deberet. 2 [...]. Curia Episcopi non intelligitur fore inf [...]a Stat. 16. Ric. II. sed in Curia Romana aut alibi, debet intelligi, extra regnum.

Sed resolutum fuit per Fitz James Capitalem Justitiarium & totam Curiam; quod, sitne consuetudo, sive id quod praesentatum est legitimum vel non; res, temporalis est & à lege communi determinabilis, non in Curia spirituali: & Episcopum igitur incidisse in crimen de Praemunire.

2 [...]. Quod verbum alibi, extendit tum ad Curias Episcopi, tum & alias Curias [...]cclesiasticas infra regnum, & saepius ita judicatum esse per Curiam. Tune Episcopus indictamentum confessus est, & super hoc, Port secundus Justi [...]iar [...]s judicium versus eum protulit: quod esset extra protectionem Regis, & quod bona & catalla ejus Regi essent forisfacta, corpusque ejus car [...]ri mancipan­dum [...]squ [...]quo placu [...]rit Regi.

De Episcopatu plura aliquot. Eum instituit S. Felix Burgundus, ad­ductus a Sigeberto, East-Anglorum Regum primo Christiano; ut populo suo Apostolus sor [...]t. Sedem posuit Dunmoci in Suffolcia. Sed post tertium succ [...]ssor [...]m divisus est Episcopatus in duas di [...]ces [...]s: alt [...]ra cum 11. Epis­copis Dunwi [...]i permanente, altera cum 12. Elmhamiae in Norfolcia collo­cata. Direpta jam a Danis tota regione, diu vacua [...]sit utraque dioe­cesis; sed coal [...]sc [...]nt [...] sub Edwino Rege, Anno scilic [...]t 955. sede Elmhamiae fruuntur 12. alii Episcopi. Hic Arfastus vero dec [...]us tertius, Thetfordiam transtulit sub Guli [...]lmo I. & qui post alterum successit ei Herbert [...]s de Lo­singa, Norwicum usque; ubi praediis (ut di [...]imus) antiquis viduata; hodie novis fruitur. Tenu [...]runt autem Episcopi veteres Baroniam suam, 5. meli­tum s [...]odis; quibus jam Regi devolutis, quaero quonam fulcimine Baronia nititur, & quonam titulo Parliamentaria ingreditur Episcopus Comitia?

Inter caetera Nobilitatis monumenta; celebris olim fuit haec urbecula solio Regum East-Anglorum, Episcopali Cathedra, & octo praeterea Mo­naster [...]s, quod ne [...] in primaria ulla reperitur civitate, nec in tantillo am­bitu, n [...] ipsomet Londmo; adeo ut vel nostram dixeris [...], vel ex merito Mona [...]opolin. In responsion [...] vero quam dedit Norfolciae Vice-Com [...]s Brevi Regis Edouardi I. anno regni ejus 9. emanenti, quo se fieri certior [...]m Rex p [...]aecepit, Quot civitates, burgi, & villae essent in hoc Comi­tatu▪ unica [...]an [...]um memoratur civitas, Norwicus scilicet; & duo pariter [Page 161] burgi, h. e. Jaremutha magna & villa Lenn-Episcopi: nulla de Thetfordia mentione, quantacunque celebri vetustate. Proculdubio quod jam burgi tantum essent habiti, qui Procuratores in regni emitterent Comitia seu Par­liamenta: & Thetfordiensibus non indulta est haec gratia ante annum—quatenus è schedis liqueat Parliamentariis.

Inter Coenobitas qui hic floruere, Joannes Bramis Waldei historiam è ve­teribus Anglico & Gallico exemplaribus latine concinnavit, quod in MS. Codice Collegii Corporis Christi Cantabrigiae sic exponitur,

De Thetford Monachis Bramis edidit ista Joannes.

Nec taceam nobile illud monumentum nostrum, quod à senorum dierum creatione, Hexameron (cum illo S. Ambrosii) inscribitur, à Monacho etiam Thetfordiensi, 300. hinc annis (ut scriptura suadeat) conditum perhiberi. Carmine, fateor, satis impolito, & pro genio seculi, leonino; egregia vero solertiâ & amplo volumine, rerumque cognitione multiplicium (ne Bartassus primus dicatur hunc induisse cothurnum) refertissimum. Addam Prologi ejus exordium; ut nostrum sciat Manuscriptum, qui in similem Codicem in ciderit:

Omnia disponens, nusquam metam sibi ponens
Virtus divina, stabilis manet absque ruina.
Sacrum pneuma quidem, genitor genitus, Deus id [...]m
Fons, vitae munus, numero sine, trinus & unus, &c.

Breclys. A Thetfordia in Boream redeunti velut ad septimum lapidem, Breclis occurrit, exoletae Breclesiorum familiae sedes, quam sub Anglo-Normanno­rum seculo, Willielmus de Warenna, Comes Sussexiae & Surriae, Thomae de­dit filio Godfridi, filio Alberti Francigenae, cum pluribus aliis Burnhamiae, Grimstoniae, &c. praediis, quae per faemineam haeredem ad Cumptonos alios­que transiêre. Tulit nobilis olim haec familia in feodali clypeo dominorum suorum Comitum de Warenna Symbolum, cianeo colore in distinctionem in nigrum verso: hoc est, aream tessellatam (cheque vocant) ex auro & nigro; ut de Calthorpis utique supra memoravimus.

Elling­ham. Wood­rising. Haud procul Ellingham: & hic à latere Woodrising, Southwellorum amplis­simae samiliae (è qua Ricardus Reginae Mariae è consiliis claruit) speciosa pa­riter & spatiosa habitatio.

Carbrook Huic se adjungit Carbrooke, ubi militum S. Joannis Hierosolymitani Prio­ratus fuit, plurimis per hanc provinciam ditatus praediis & clientibus feoda­libus. Qui cum amplissimis illius ordinis gauderent privilegiis, crucis sym­bolum domibus suis vicatim apponebant, ut sic ab aliis eorum innotesceret immunitas. Hoc autem cum multi alii olim factitarent, ut sub iisdem deli­tescerent immunitatibus, statutum An. 13. Edw. I. Westm. 2. ca. 13. ut prae­dia illa quibus falso appingerentur ejusmodi cruces, in domini feodalis tran­sirent patrimonium.

Watton. Merton. Hinc per Watton mercatorium, ad Merton itur; quod à lacu nomen habet; decus autem à splendidis aedibus, quas illic nuper exstruxit Gulielmus Grey, probitate & prosapia eques splendidus.

North­wold. Meth­wold. Hock­wold. Habentur in hoc tractu Northwold, Methwold, & Hocwold, i. e.—aqui­lonaris, medius, & angularis, quod in sinu Isidis velut angulo concluditur. Northwold vero 12. aestimatum hydis, in illa permutatione de qua supra dixi­mus, cessit Rex Eadgarus Episcopo Wintoniensi, qui hoc statim contulit Eliensi Monasterio. Methwold ad Ducatum Lancastriae pertinens, cuniculos alit laudatissimos, cui ex constitutione Leoffini Abbatis tempore Canuti Re­gis, obsonium reddebat annuatim duorum mensium: ut vicinum Feltwell, Fel [...]well.Munfordorum antiquae & equestris familiae habitatio, quae an ab Hugone de Monte forti, qui cum Gulielmo I. Angliam est ingressus, plurimaque praedia [Page 162] tractu hoc invaserat, dicant qui rimantur stemmata: confundi enim saepius animadverto nomina: & in Charta libertatum Angliae ab Henrico I. con­cessa, inter testes venit Rob. de Mundforde, ut in rubro libro Scaccarii habetur, Parisio autem Rob. de Monteforti.

Haec ruris pars, ut occidentis reliqua pascendis ovibus magnopere expo­nitur. Pleraeque villae aut unum, aut duo, aut tria, interdum quatuor vel quinque millia nutriunt: ut intelligas Proceres Angliae apud Edw. I. de vectigali lanis imposito conquerentes, consulto affirmasse opum regni dimi­dium in lanis consistere. Dignum est vel nosse leges quibus lanigerum hoc pe­cus apud nos regitur: nam alibi non reperiuntur. Gregem instituere solius fuit domini villae seu manerii, numerum & species ovium, stationesque de­signare: ubi locorum, & quo modo quibusque legibus cum in hyeme, tum in aestate pascerentur. Hyeme vero, non suas tantum, sed aliorum omnium terras stationem illam per semestre pascere. Caulas item erigere & circum­ducere sive stercorationis causa, sive alterius beneficii. Nihil horum alteri licitum, ne vel ovem unicam in alodio suo hic sustinere. Stationem istam the Shepes course vocant; libertatem erigendi caulas, fouldage & Saxonice fal [...]- [...]ocne, stercorationem Tath; & hyemalem pastionem Shack appellant..... Reliqua desiderantur.






QUIS sub Gulielmo Conquestore sit donandus Marescalli titulo, nemo (reor) certus affirmaverit. Non recepta enim videtur adhuc illa vox à Scriptoribus nostris: &, si qui novisse se id Officium arbitrentur; adeo dissonis tra­didere vocibus, ut Lectorem relegant dubitantem. Men­tionem quippe faciunt de 1 Praeposito Regalis Exercitus, de Principe Militiae, de Magistro Militum, Magistro Equitum, Tribuno Militum, Tribuno rei militaris, Tribuno Exercitus, &c. Sed cujus hi erant conditionis, Constabulariine an Marescalli, iidem an di­versi Officiales, ductorumve tertium genus aliquod & in se distinctum alias, non definiunt.

RADULPHUS DE WACEIO, apud Gulielmum 2Gemeticensem, Guli­elmi Conquestoris pueri adhuc Tutor, constituitur & Princeps militiae Nor­mannorum, & in mox sequenti capite altero Magister Militum appellatur.

GULIELMUS vero filius OSBERNI, qui prae aliis omnibus Conquesto­rem excitavit ad Anglorum excidium, exercitusque ejus partem tertiam duxit; in Lib. MS. Coenobii de Bello, Tribunus Militum nuncupatus est, & alias Tribunus Normanni Exercitus: Quod de Marescalli munere (fateor) intelli­gatur. Huntingtonio, (pag. 367.) Dapifer Ducis. Sed Eboracensis Fecialis (nescio qua authoritate fretus, & in hoc à Vincentio, suo mastice, minime po­stulatus) expresse refert, Gulielmum Conquestorem in Anno Dom. 1068. id est regni sui 1. vel. 2. Gulielmum filium Osberni, ob eximiam in militia nava­tam operam, & Comitem Herefordiae & Marescallum Senescallumque Angliae constituisse. Certe, non redarguam, eum fuisse Marescallum; Angliam au­tem tunc venisse in titulos Marescalli, Constabularii, aut Senescalli non assentiar▪ Occubuisse vero dicitur Osbernus An. Dom. 1072. i. e. 5. vel 6. Conquestoris.

HUGO GRANTESMALE à Fecialibus nostris in rimandis Genealogiis sub Conquestore inscribitur Marescallus. Sic in Genealogia Vice-Comitis Montecute: quo nixa fulciminae, non ariolor. Et in Genealogia Gulielmidum, quos Fitz-Williams appellamus; stirpis Protoplastum ponunt G. Fitz-Williams sub Gulielmo Conquestore Com. Marescallum Angliae.

Henr. I JOHANNES MARESCALLUS. Suggerere se videtur istiusmodi quispiam in Testatione Brevis cujusdam Regis Henrici I. quod in Registro Veteri Ec­clesiae Cathedralis Norwicensis legitur, numero XV. H. Rex Anglorum, Rogero Costard & Brumam fil. Waring, & Edwardo salutem. Praecipio, &c. quod Monachi de Norwic, &c. T. Johanne Mar. (lego Marescallo) apud Theotford.

Steph GILBERTUS (à forti arcu cognominatus Strangbow) secundus filius Gil­berti Comitis Clare, creatus fuit Comes Palatinus Penbrochiae ann [...] [...]. Regis Stephani, & Marescallus fuit Palatii Regis; obiitque An. 14. Regis [...]tephani. [Page 166] Sepelitur in Abbatia Tinternae. [Quaere: nam hic in petitione Margaretae filiae primogenitae & cohaeredis Thomae de Brotherton Comitis Norfolc. ex­hibita, in coronatione Ric. II. dicitur fungi officio Marescalciae in Corona­tione Henrici II. ut post aliquot in Marescalcia Henrici de Percy latius patebit.]

Henr. II. RICARDUS DE HU [...]EZ sub hoc tempore, viz. sub Henrico II. dicitur in Chron. Abbatiae de Bello, Tribunus Regis.

RICHARDUS COMES PEMBROCHIAE, & Striguliae, &c. fortissimus Regni Lemstriae apud Hibernicos subactor, Dominus Marescallus & saevissimus teneri atque unici filii exenterator, quod ab hostibus oppressus in patrium confugit praesidium. Sepultus Kilkenniae An. 11 [...]6. Dubliniam à Sidneio Prorege transfertur, monumentoque donatus in Ecclesia S.—,dislectum praebet a latere filium, ut aliquando vidimus.

WILLIELMUS MARESCALLUS REGIS, filius Johannis, & Gilberti nepos, accipiens in uxorem ex tutelari dono Regis Richardi I. Isabellam fi­liam & haeredem dicti Richardi Comitis Penbrochiae, a Johanne Rege in die suae coronationis Penbrochiae Comes instituitur, & Marescallus Angliae, ut quidam perhibent 1. Mihi autem non videtur hoc gavisus titulo. Nam Mat. Paris Auctor coaetaneus, eum omni laudum genere prosequitur, magnumque appellat Marescallum, sed (quod memini) non Angliae, verum Regis, Marescal­lum. Erat praeterea Custos Regis & Regni, necnon summus Angliae Justitia­rius; ubi plura quaepiam de illo annotavimus. Placeat hic tamen repetitum ejus Epitaphium:

Sum quem Saturnum sibi sensit Hibernia, Solem
Anglia, Mercurium Normannia, Gallia Martem.

Obiit An. 1219. 4. Henr. III. & sepultus est in Novo Templo 17. Kal. Apr. relicti [...], praeter 5. filias, totidem filiis, qui in Marescalciam caeterasque digni­tates succedentes omnes, omnes sine sobole excesserunt, viz.

4 Henr. III WILLIELMUS MARESCALLUS, qui secundi nuptiis Eleanoram duxit filiam Regis Johannis. Obiit 6. Apr. 1231. 15. Henr. III.

[...] Hen. III. RICARDUS MARESCALLUS secundus filius, Anglicarum libertatum audacissimus assertor (ut habet Matthaeus Parisiensis) in Hibernia fortiter oc­cubuit, 18. Henr. III.

[...] Henr. III. GILBERTUS MARESCALLUS tertius filius (Clericali titulo primum addictus) duxit Margaretam sororem Wil. Regis Scotiae, & in hastiludio Hartfordiae ab effraenato sui ipsius equo interficitur 5. Kal. Julii, An. Dom. 1241. 25. Henr. III. Mat. Paris. hunc Comitem Marescallum ibidem vocat (pa. 546.) Sepelitur in Novo Templo Londoniis. Stow in An. 25. Henr. III. Dom. 1241.

[...] Henr. III. WALTERUS Comes MARESCALLUS (quartus filius) viam universae car­nis ingressus est pridu Nonas Decembris aut ut alii volunt) octavo Calend. Decem­bris, &c. [...]nquit Pari [...]ius in An. Dom. 1245. pa. 665.) id est 29. (vel ut alii volunt) 3 [...]. Henr. III.

[...] H [...]nr III ANSELMUS Comes MARESCALLUS, quintus filius Willielmi Magni Marescalli, obiit 22. Decembr. id est 18. (ut quidam perhibent) post fratrem die, quinis suis sororibus haereditatem cedens herciscendam.

[...] H [...]nr III ROGERUS BIGOT, quartus Comes Norfolciae illius cognominis, hoc deinceps modo in Marescalciam successit. Hugo Bigot pater ejus, Comes Nor­solciae, vel (ut Parisius habet) Orientalium Anglorum; duxit Matildem pri­mogenitam dictarum cohaeredum, & obiit Anno 9. Henr. III. Domini nostri 1225. (ut refert Parisius pa. 313.) omnibus uxoris suae fratribus jam tunc [Page 167] viventibus; & Marescallus ideo jure uxoris (ut quidam innuit) non potui [...] salutari. Extincto autem Anselmo fratrum novissimo, Anno 29. vel 30. Henr. III. divisaque anno 31. inter sorores immensa ejus haereditate, Marescalcia Angliae (cum Manerio de Hemsted in Comitatu Berceriae, cui è tenura id in­cumbit officium, & latifundiis annui simul valoris 1120. librarum) in Matildis cessit portionem. Marescalciam in eodem statim anno, cum illius Virga dig­nitatis, filio suo Rogero supradicto contulisse dicitur. Mat. Par. in An. 1246. qui 30. & 31. Henr. III. Eodem (inquit) anno, multiplicatis intercessionibus, concessa est Marescalcia cum officio & honore, Comiti Rogero Bigod, ratione Comitissae filiae Comitis Magni Willielmi Marescalli primogenitae uxoris suae. Cave: legendum videtur matris suae: nam Hugo pater ejus filiam duxit primogenitam Willi­elmi Magni Marescalli, ut supra declaravimus; ipse vero Isabellam filiam Wil­lielmi Regis Scotiae, & in hastiludio conquassus expiravit sine prole, An. 1269. Stowus Anno 1246. Parisium secutus, Rogerum duxisse ait filiam Mares­calli: perperam.

53. vel 54. Henr. III. ROGERUS BIGOT, ex Hugone fratre Justitiario Angliae Rogeri nepos in Norfolciae Comitatum & Marescalciam Angliae succedebat.

1. Edw. I. Hic cum Regi Edouardi I. in auxilium Comitis Flandriae profecturo mili­tiam contumacius detrectasset; Regem postmodum ad gratiam ejus redinte­grandam, haeredem scripsit; sponte tamen an coactus, non satis liquidum. Sunt enim qui obaeratum eum ferunt fratri suo Johanni, expertemque libero­rum eidem cedere post dies suos patrimonium statuisse. Fratre vero nimia deposcente debitum importunitate, indignantem convenisse cum Rege Anno 1301. hunc & leniret, illum ut perderet. Regi patrimonium cum Marescalcia transcribendum. Ea tamen conditione, quod appositis annui valoris mille marcarum praediis, Rex ei Norfolciae Comitatum & Marescalciam Angliae ad terminum vitae suae concederet; necnon & soboli, si futura contigeret; Regi alioquin remansuram: & debita Rex praeterea solveret. Pactum alii impo­situm perhibent. Comes vero intra quadriennium moritur sine prole An. 1305. 1. penultimo vel antepenultimo Regis; praeteritoque fratre, pacta ad Regem deferuntur. Walsinghamus hunc non semel Comitem Marescallum nuncupat, (pa. 72. l. 42. & 73. l. 37.) ut Matthaeus Parisiensis Gilbertum Comi­tem Marescallum; & Willielmus Marescallus appellatus erat Comes, tempore Henr. II. non tamen cinctus fuit gladio Comitatus Striguil. donec Rex Jo­hannes hoc ei praestitit in Coronatione sua: sic & Gaufridus Fitz-Peter gladio Comitatus Essexiensis (Vid. Hovd. pa. 793. l. 52.) Cum tamen Comitis titu­lum ex concessione Principis nondum assecuti essent Marescalli; exemplo Tribunorum scholarum in Jure Civili, Tribunus Militum (qui nunc Marescallus dicitur) nomen & honorem Comitis signavit. (Vid. Cod. Tit. de Comitibus & Tribunis; & P. Tribuni scholarum.)

1. Edw. II. ROBERTUS DE CLIFFORD: cui Rex Edw. II. anno regni 1. officium contulit Marescalciae Angliae; ut patet Pat. p. 2. m. 19.

1. Edw. II. NICOLAUS DE SEGRAVE eodem constitutus anno, durante Regis beneplacito. Pat. p. 2. m. 22.

9. Edw. II. THOMAS DE BROTHERTON, quintus filius Edouardi I. & secundo na­tus toro, creatus est Comes Norfolciae ab Edouardo II. fratre suo ex parte patris, 16. Dec. anno 6. dicti Edouardi II. & Marescallus Angliae 10. Febr. anno ejusdem 9. Tenend. dignitatem primam, sibi & haeredibus suis de corpore suo, &c. alteram, sibi & haeredibus Masculis de corpore suo legitime procreatis; ut testatur Charta Regia eandem concedens in haec verba—Dilecto & fideli no­stro Thomae de Brotherton Comiti Norfolk. fratri nostro charissimo Marescalciam An­gliae cum omnibus ad Marescalciam illam pertinentibus. Habendum & tenendum sibi & haeredibus masculis de corpore suo legitime procreatis, &c. faciendo inde nobis & haeredibus nostris servicia quae progenitoribus nostris inde debebantur, antequam ea­dem Marescalcia ad manus Domini E. quondam Regis Angliae patris nostri, per donationem & remissionem Rogeri le Bygod quondam Comitis Norff. & Marescalli [Page 168] Angliae d [...]venit, &c. Dat. per manum nostram apud Lincoln. 10. die Febr. anno regni nostri nono. Obiit hic Thomas anno duodecimo Edw. III. Gratiae 1338. relicta sobole, Edouardo, Margareta, & Alicia.

[...] III. EDOUARDUS Comes Norfolciae & Marescallus Angliae, pupillari moritur in custodia; trans [...]unte ad sorores patrimonio.

WILLI [...]M [...]S MONTACUTE. Vincent. pa. 340.

[...] III. THOMAS BEAUCHAMP decimus quartus Comes Warwic. Anno 1337. qui respicit Annum 11. & initium 12. Edwardi tertii, factus est (inquit Yorckus, pa. 577.) Marescallus Angliae ab Edouardi III. durante placito. Obiit 34. [...]jusd. Edward [...][Vide: nam hoc non convenit cum ultimis supra.] (Spelm.)

[...] III. ROGERUS MORTIMER Comes Marchiae 11. Marescallus erat Angliae 34. Edw. III. ut patet Original. 34. Ed. III. Rot. 16.

[...] III THOMAS BE [...]UCHAMP Comes Warwicensis, ad placitum. Dat. 16. Octob. 4 [...]. Edw. III. Pat. p. 2. m. 16.

[...] III EDMUNDUS MORTIMER, Comes Marchiae, sub annis novissimis Ed­wardi III. Angliae fru [...]tur Marescalcia; sed quo nixus jure, nondum reperi. Anno vero Domini 1376. Regis Edw. III. 50. jussus a Johanne Duce Lan­castriae (qui jam torpente sen [...]o Rege primas obtinuit) ut tuendae Calisiae gratia in partes cederet transmarinas; veritus machinationis quidpiam sibi impendere, Marescalc [...] virgam cum officio Duci reddidit. Is laetanter hanc accipiens, [...]am protinus familiari suo Henrico de Percy (quem Hotspur appel­labant) tradidit. Stow. ibid.—Dicitur Marescallus Angliae in Commissione in Casu judicandi inter Thomam Moore & Rad. Basset concessa Guidoni Brian & Richardo Stafford, anno 48. Edw. III. Pat. p. 2. m. 20. dors.

[...] III HENRICUS PERCY sic ut diximus Marescallus salutatur anno 50. Edw. III. jam tum languescentis & anno proximo morientis.

[...] II HENRICUS DE PERCY non de jure, sed [...] Regis beneplacito designatus est in Coronatione Richardi secundi, Marescallus Angliae; pendente tunc de jure controversia. Margareta quippe filia primogenita & haeres altera dicti Thomae Comitis Norfolciae in Processu facto ad istius Regis Coronationem, petitionem hanc exhibuit. A tres honore Seigneur le Roi de Castele & de L [...]on Duc de Lancastre & Seneschall d▪ Engleterre, supplie Margarete file & h [...]re Thomas de Brotherton nadgairs Counte de Norff. & Marescall d' Engl [...]terre d estre acceptee al Office de Marescalcie ore al Coronement nostre Seigneur le Roy, come a son droit heritage apres la mort le dit Thomas son Piere, fesant l' Office per son Depute, come Gilbert Mar [...]schall Counte de Strogoile fist al Coronement le Roy Henry s [...]cond. C [...]st assauoire d [...] p [...]ser debatz en meson le Roy au jour de Coronement, & [...] faire liveree des h [...]rbergages, & de garder les oesses del chambre l [...] Roy, pernant de chescun Baron & Counte [...]at [...]z Chiualer a c [...]l jour, un palfrey one une selle.

Sup [...]r quo (inquiunt membranae Regiae) audita petitione praedicta, dictum fuit pro Domino Rege i [...]idem: quod officium illud in persona Domini Regis in feodo re­mansit, ad assignandum & contulendum cuicunque ipsi Regi placeret: & super hoc auditis tam pro Domino Rege quam pro praefata Comitissa pluribus rationibus & al­legationibus in hac parte, pro [...]o quod videbatur Curiae, quod sinalis discussio negotii praedictis, propter temporis brevitatem, ante Coronationem praedictam fieri non potuit; Henricus de Percy ex assensu & praecepto ipsius Regis assignatus fuit ad officium prae­dictum faciendum, percipiendo feoda debita & consueta, salvo jure cujuslibet, & sic idem Henricus officium illud perfecit. Hac scilicet vice; non diuturnus Ma­rescallus.

Sed quaere, quo Margareta nitebatur titulo, cum officium patri suo & haere­dibus de corpore suo tantum masculis ut supra patet) conferretur?

[...] Ric. II. JO. FITZ-A [...]AN Dominus Maltravers.—

3. Ric. II THO. HO [...]LAND—

[...]. Ric. II. Sub ultima medietate Junii, cum Rex Gulielmum Walworth Praetorem [...]on­dinensem Equ. auratum constituit, creavit etiam (inquit Stowus) super monte versus Iseldoune Comites Marescallum & Penb. (pa. 463.) (Quaere, quis hic fuit?)

[Page 169] 9. Ric. II THOMAS Dominus de MOUBRAY, filius (& post mortem Johannis fra­tris sui) haeres Elizabethae utriusque corum matris, filiae & haeredis Johannis Domini Segrave & Margaretae praedictae Ducissae Norfolciae, filiae & haeredis Tho. de Brotherton praedicti; creatus est à Ric. II. anno regni sui 6. Comes Nottingham. Et cum huc usque, Domini tantum Marescalli in Chartis Regiis nuncuparentur, iste *Sed in libro Feo­dario, sacto 20. Ed. III. Tit. Hund. de Frebriggs, sic legitur: Prior de Massingham tenet m [...] Massingham 4tam part [...]m feodi Militis de Comit [...] Marescallo.—p. 26. [Spelman.]primus per chartam ejusdem Regis, dat. 12. Jan. regni 9. titulo investitus est COMITIS MARESCALLI ANGLIAE, tenendum sibi & haeredibus masculis de corpore suo exeuntibus. Anno deinceps 21. ejusdem Regis, evectus est in aviae dignitatem, Ducem scil. Norfolciae: sed haud multo post in exilium relegatus, Venetiis obiit, An. 1400. 1. Henrici IV. suscitavit prolem, Thomam, Johannem, Isabellam, & Margaretam, omnes Marescalciae functos dignitate, vel in seipsis, vel in sobole.

21. Ric II. THOMAS HOLLAND Comes Cantii, filius Thomae Holland Comitis Cantii, & fratris uterini Regis Ricardi II. ab eodem Rege anno regni sui 21. creatus est Dux Surriae: & ad cognoscendum de lite militari jam tum exorta inter Henricum Ducem Herefordiae, Appellantem; & Thomam Moubray Ducem Norfolciae Comitem Marescallum Angliae, partem ream; mox item­que factus est hac vice Marescallus Angliae, Aumarliense Duce tunc agente Constabulario. York, pag. 9. 284. & 528. Hol. 493. b. 40. 494. b. 30.

22. Ric. II. JO. MONTAGUE Comes Sarisburiensis.

1. Henr. IV. THOMAS MOUBRAY, mortuo in exilio patre, Dux Norfolciae & Comes Marescallus Angliae salutatur. Sexto vero anno Henrici IV. capite mulctatus, sine prole excessit.

1. Henr. IV. RADULPHUS NEVILL Comes Westmerland. 21. Ric. II. & Richmundiae 1. Henr. IV. fuit Comes Marescallus Angliae. Obiit 4. Henry VI. 1425. York.—Vincent. pa. 340.

6. Henr. IV. THO. ERPINGHAM Commissarius ad exequendum officium Marescalli Angliae. Pat. p. 1. m. 30.

1. Henr. V. JOHANNES MOWBRAY, Thomae senioris secundus filius restituitur Comes Nottingham & Comes Marescallus Angliae, anno primo Henrici V. & deinceps anno tertio Henrici VI. Dux Norfolciae in Parliamento restitutus est. Obiit Anno Domini 1432. ut York dicit pa. 391. vel An. 1434. ut dicit pa. 347. Vid. Vincent. ibid.

11. Henr. VI. JOHANNES MOWBRAY filius dicti Johannis, Dux Norfolciae & Comes Marescallus Angliae, fato cessit anno primo Edwardi IV. Domini nostri 1461.

THOMAS HOLLAND, Marescallus Angliae, durante minore aetate dicti Johannis; factus anno 11. Henrici sexti. Pat. p. 1. m. 20.

1. Edw. IV. JOHANNES MOWBRAY, vivente patre suo, creatus est ab Henrico VI. Comes Warren. & Surriae, eidemque morienti successit Dux Norfolciae & Comes Marescallus Angliae. Interiit An. Dom. 1475. 15. Edw. IV. unica suscepta filia & haerede, Anna nomine.

RICARDUS Dux EBORACENSIS secundus filius Regis Edouardi IV. duxit praedictam Annam, filiam & haeredem ultimi Johannis Mowbray, & jure ejus, fuit Comes Marescallus Angliae, quod haec dignitas ad foeminas transiit haeredes de corpore Thomae Mowbray; non autem Dux Norfolciae, quod haec tantum masculis cedebatur. Iste Dux Ricardus cum fratre suo Rege Edouardi V. à Ricardo Duce Glocestriae avunculo eorum, nefandissima in Turri Londinensi morte obruitur, An. Dom. 1483. nullaque suscitata prole, ipsa etiam Anna extinguitur.

1. Rich. III. GULIELMUS Dominus BERKELEY, filius Jacobi Domini Berkeley & Isabellae uxoris suae, filiae Thomae Domini Mowbray Ducis Norfolciae, primi Comitis Marescalli Angliae; anno 1. Ric. III. factus est Comes Nottingham & Comes Marescallus Angliae; & 4. Henrici VII. Marchio de Berkeley. Exha­lavit sine prole, anno 7. ejusdem Regis Henrici.

JOHANNES HOWARD Eques Auratus (filius Roberti Howard Equitis [Page 170] Aurati & Margaretae uxoris suae, filiae & demum cohaeredis Thomae Mowbray senioris Ducis Norfolciae & primi Comitis Marescalli Angliae, utpote con­sanguineus & alter haeredum dictae Annae Ducissae Eboracensis;) constitutus est a Richardo III. Dux Norfolciae & Comes Marescallus Angliae: proque Rege suo fortiter dimicans in Bosworthensi praelio, una cum eodem, votis & fato conjunctus, interfectus est. Extincto autem ad hunc modum, Ducatus ejus Norfolciae & Marescalcia Angliae ad fiscum rediguntur; filiusque ejus & haeres Thomas Howard ▪qui a Richardo III. eodem tempore factus est Surre­giae Comes, quo & pater Dux Norfolciae) licet jure gentium & naturae, do­mini sui Regis & patris signa insecutus esset, a victore tamen Rege Henrico VII. arce Londoniensi mancipatus coërcetur; sed nullo interea Marescalciae de­signato.

THO. HOWARD tertius Dux.

THO. HOWARD, heros fortissimus (quem ut verbo non transeam Virtuti Sacrum prohibet) creatus est Surriae Comes a Richardo III. cum & Joh. pater ejus in Ducem promovetur Norfolciae. Ipsis vero Rege & patre in Bosworthi praelio corruentibus; hic inter medias acies virtute dextrae sospes emicuit. Captus autem a Victore Rege Henrico septimo, in arcem Londinensem de­truditur: sed ob eximiam probitatem, prudentiam, & fortitudinem, ab eodem Henrico post triennium evocatur; & ad debellandum hostes suos in praelia Lincolnense,—& Bambregense emissus, omnia adeo strenue gessit, ut in tractu Boreali tam ad compescendos Provinciales quam ad Scotos conteren­dos, Vicarius Regis designatur. Hoc ut auspicatius exequeretur, in ipso utri­usque regni limine se constituit; Anglis à tergo clypeum tutelarem, Scotis à fronte gladium formidabilem. Contritis his, & pacatis illis, ad Regem gratus [...] Hen [...]. VII.regreditur. Fit Angliae Thesaurarius & ad paternam dignitatem Comitis Ma­rescalli Angliae restituitur. Rex moritur; succedit filius ejus Henricus VIII. qui in Galliam, cum illustri exercitu proficiscens, Nobilitatem pene omnem una abducit. Veteris autem hostis memor, Comitem denuo praeficit cum ar­matis copiis tractui Boreali; ut quae in absentia sua moliretur Scotus, praesto oppugnaret. Rex Scotiae Jacobus quartus, ansam ex absentia Regis tem­pestive comprehendendam ratus, Angliam cum ingenti exercitu ingreditur. Occurrit Comes in limite: pugnatur acerrime. Ruit Scotorum exercitus at­que una Rex ipse, 2. Episcopi, 11. Comites, 17. Barones, 400. Equites aurati, minoris autem Nobilitatis & gregariae multitudinis 17000. cadentibus interea quamplurimis Anglorum. Captis deinde Scotorum castris, cum machinis py­reis & suppellectili bellico, firmatisque omnibus ad regionis pacem conducen­tibus, Londinum regreditur; reversoque è Gallia Regi Henrico inimici (li­cet fratris conjugalis) cadaver & opima spolia pacis & victoriae symbola pro­ponebat. Laetus Rex è duplici palma; illa quam à Gallis ipsemet feliciter, ista quam à Scotis Comes fortissime detulit; Comiti reddit Ducatum Nor­folciae; latifundia confert: & ut ipse pariter & nepotes de tanta victoria tri­umpharent, Emblema clypei interfecti Regis in diagonio clypei Howardo­tum gerendum perpetuo designavit.

Pace inter Reges Angliae & Franciae composita, delegatur jam hic idem Dux Norfolciae in Franciam, cum Maria sorore Regis Henrici, Regi Franciae Ludovico desponsanda. Et transeuntibus deinde Rege & Regina Angliae in A­quitania, ad salutandum Regem & Reginam Franciae; hic totius Angliae Pro­rex constituitur, & Mariae tutor Principis infantulae. Tandem à Curia & Consiliis Regis per licentiam secedens octogenarius, residuo vitae pie ac pla­cide exacto, in castro suo Framingamiae migravit ad Dominum.

[...] [...]I▪ EDOUARDUS SEIMOUR Dux Somersetensis, à nepote suo Rege Edou­ardo VI. & Thesaurarius factus est & Marescallus Angliae; bellum jam adver­sus Scotos sub initio Regis suscepturus; Thoma Duce Norfolciae, priori Ma­rescallo, Turri interea coërcito.

JOHANNES DUDLEY Dux Northumbriae.

[Page 171] Maria. THOMAS HOWARD in avitos Majorum titulos à Regina Maria post deliquium suscitatus, quartus Dux Norfolciae hujus nominis Comes Marescallus Angliae efficitur. Nuptias vero ambiens Mariae Reginae Scotiae, cum à Regina Elizabetha prohiberetur, fataliter recidit.

GEORGIUS TALBOT, Comes Salopiae, qui in proscriptione Thomae Ducis Norfolciae novissimi, functus est officio magni Seneschalli Angliae; post sublatum eundem, Marescalli insignitur munere.

ROBERTUS D' EUREUX, Comes Essexiae & Augiae, Vice-Comes Bour­chier, multisque praeterea illustris dignitatibus. Populi ab ephebis desiderium fuit, etiam Aulae, & ipsius aliquando Reginae Elizabethae. In Hispaniam mis­sus cum exercitu, & una Carolus Howard Baro Effinghamiae magnus Angliae Admiralius, imperio pares, Caletem diripiunt, spoliumque ingens referentes, hic Nottinghamiae Comitatu, ille Comitiva Marescalcia Angliae ad vitae ter­minum insignitur. Altero post haec anno, Comes Essexius in Hiberniam Pro­rex delegatur, ad Tironensium motus compescendos. Re vero parum inte­gre administrata, Reginae contrahit indignationem, quam ut mulceat, pro­pere advolat: sed desperata spe, ad arma provocat; & ausis decidens, mulcta­tur capite, 25. Feb. 1600. Eliz. 42. Sic ad fiscum rediit Marescalcia.

THOMAS HOWARD è filio nepos Thomae ultimi Ducis Norfolciae (Comes Arundeliae & Surregiae, Comitumque omnium Anglo­rum Pro­to-Comes.Britannicorum Pri­micerius; Baroniarum onustus titulis, Eques Periscelidis, Regiae Majestati à Consiliis, &c. heros natus ad ornamentum Reipublicae, veteris exemplar pru­dentiae & Romanae gravitatis;) donatus fuit avita Comitis Marescalli Angliae dignitate & virga aurea, à Jacobo Rege, ad vitae terminum possidenda.


MILES à mille, ut perhibent; nec probo, nec corrigo. Is autem est, qui in militiam legitime conscribitur: sed transfertur nomen ad Civiles aliquot Magistratus, officiales, ministros, famulos; de quibus dicemus, cum Militares absolverimus. Conscriptio duplex, Pl [...]b [...]a, seu Gregaria; & Honoraria. De Gregario milite, plurimis licet hone­stato privilegiis in Jure Caesareo, nos hic non agimus. Honoratus est, qui honoraria aliqua solennitate in ordinem ascribitur Militarem.

Ejus multiplex in appellatio. Brito in Synonimis:

Miles, Eques, Tyro, Tyrunculus, atque Quirites,
Atque Neoptolemus novus est regnator in illis.

Valla & plures alii Decurionem nuncupari volunt: & addantur pari licent [...]a Equitum Romanorum antiqua nomina: Celeres, sub Romulo & Regibus, a celeritate in praelio: Flexumines, à flectendis equis milita [...]bus; qui & post­modum Trossuli, quod sine peditum auxilio Trossulum, urbem in Tuscia, ce­pissent. Adjiciatur & recentius è Feudistis subvavasor; ab Anglo-Saxonibus Thanus, & quod Thanum (vernaculumque nostrum knight) Latine sonat, Minister. De prioribus dicant Academici; nos de reliquis suo loco. Nostra autem sic annectentur ad illa Britonis:

Flexumines, Celeres, Decurio, Trossulus olim,
Nuperius Thanus, Subvavasor, atque Minister.

Miles vero, a militantibus in genere: Eques, à specie; quod equo merebat. Valla tamen. Miles (inquit) proprie qui pedibus militat, dicitur, Eques, qu [...] equo. Et dum Militis nomen perperam his impositum causatur quos digna­tione afficimus, eos mavult Decuriones nuncupari; quod Duarenus nomen at­que alii ad Majores item Villarum transferentes, vocem destituunt certa signi­catione. Vallae tamen approbat Bebellius in Commentariis de abusione Lin­guae, & multa congerit adversus Interpretes qui hos appellant Milites: ut Tiraquellus item Vir doctissimus in Consuetud. Picta. Tit. 1 [...]. §. ult. Gloss. 2.

Tyro, miles novitus; cujus tamen est (ut docet Cicero, Tuse. 2.) ferre la­bor [...]m & vulnus contemnere.

Tyrunculus, tyro rudior.

Quirites; eur, non teneo: nullius enim ordinis suit; sed commune Ro­manorum nomen, à Quirino, i. e. Romulo. Sed Quirinus ipse, à quiris, Hastam ▪Sabinorum lingua) significante tanquam hastatus dicitur: Ovid. Fast.

Hasta, Quiris, priscis est dicta Sabinis.

Quirites igitur dicantur Milites nostri, velut Marti [...] & hastat [...]. Certissimum est, vocem receptam est 600. hinc annis pro Milite honorato; Ingulphumque Saxonem ideo dixisse Quiritem degenerem ut Virgilius, degenerem Neoptolemum) pro Milite non legitimo.

[Page 173] Neoptolemus enim à [...], i. e. novus & [...] alias [...] bellum; quasi [...] novus bellator seu miles novitius; Pyrrhoque Achillis filio ideo impo­situm nomen, quod ad Trojanum bellum (a knight) id est, puer venerat.

Et Equiti adjungi solet Aurati Epitheton; non ab aureis Equitum Roma­norum annulis, ut multi suspicantur; sed ab auratis calcaribus quibus insig­nitur denuo (ut inferius dicemus) Eques hic noster. Franciscus enim Philel­phus, qui floruit Anno 1480. (Eques ipsemet auratus) appellationem primus comperit; ut in Lib. Epistolar. 24. ca. 1. ad Albertum Parrisium profitetur. In hoc autem magis videatur necessarium, quod apud Gallos, insigniores uti­que Magistratus (ut Loysaeus mihi Auctor est) Chevaliers; apud Neapolitanos, sui quique Nobiles (ut Amiratus perhibet) Cavallieri, (id utrisque est Equites) appellentur; licet Equestrem non obtinuerint institutionem. Sed hos pariter auratos forsitan appellaverint. (Qu.)

Ferunt etiam nonnulli (mihi nescio an imponentes) Imperatorem aliquoties eruditionis & id generis causarum Equites instituere, qui non habentur Mi­lites honorati: ut item Comites inferioris gradus, de quibus diximus in suo loco: & Professores similiter Juris Civilis dici Equites Auratos cum 20. annos in eo­dem studio emensi fuerint. Sed haec ego per transennam, de exoticis.

Militem nostrum seu Equitem Auratum à Romano Equite non deducimus. Ille totus olim ad Militiam fabricatus est; hic ad rem Civilem pariter; & sub Consulibus, ex opulentia non virtute. Quicunque enim 400. valebat Sester­tia, i. e. monetae nostrae veteris Sterlingorum 3000. novae 6000. more & jure Civium Romanorum in Equestrem ordinem conscribendus fuit. Propinquior videtur, qui sub Imperatoribus baltheo cinctus est militari: hic vero tunc cultus non tam dignitatis fuit, quam cujusque militis Symbolum. Adeo ut discinctus pro ignavo dicitur & exuto militia, & inter poenas militares gravi­ores habita. Virilis etiam toga non ad classem aliquam, sed adultos omnes pariter attinebat. Ad Germanos provoco, ut cum suos nobis in plerisque mores porrexerint, in hoc etiam auctores fiant. Martis autem sic adibant li­mina. Arma sumere (inquit Tacitus) non ante cuiquam moris, quam civitas suf­fecturum probaverit. Tum in ipso Concilio, vel Principum aliquis, vel pater, vel propinquus, Scuto frameaque juvenem ornat. Haec apud illos toga; hic primus Ju­ventae honos: ante hoc Domus pars videntur, mox Reipublicae. Locum non intel­ligo de Ignobili; sed de eo cujus foret & Consiliis adesse Principum, & de rebus tractare publicis. Cum enim dixisset Tacitus in praecedentibus: Ger­manos nihil agere non armatos; subjungit illico, sed arma sumere, &c. ut ci­tavimus.

Ecce igitur Germani militis instituendi formulam. Primo, expetenda & expectanda Civium approbatio: Secundo, Consilii sententia: Tertio, sym­bolorum collator, qui est vel Princeps aliquis vel Magistratus honoris causa, vel pater aut propinquus mancipationis gratia. Quarto, symbolorum (id est scuti & frameae) collatio. Sic quinto, exultans telis Concilio egreditur Miles legitimus. Eques autem, non pedes: nam scutum & framea sunt Equitis arma­tura, & plane integra, non peditis; ut superius ipse docet Tacitus: Eques quidem (inquit) scuto frameaque contentus est: pedites & missilia spargunt, plura­que singuli. Hinc Tyroni istiusmodi duplex appellatio: Miles, à genere; Eques, à specie. Latine utimur utroque vocabulo; sed in vulgari Idiomate Galli, Itali, Hispani speciem tenent, sc. Chevalier, Cavalliere, Cavallero, à Lati­noram Caballo. Germani, Kitter, à ritten equitare. Angli vero priscum secuti Saxonicum, knighte dicimus, quasi famulum seu ministrum militiae. Saepe conspicitur antiquae Institutionis specimen in sigillis Anglo-Normannorum usque ad aetatem—, ubi Eques exhibetur, scutum ad pectus, frameam ge­stans ab humero dextro. Et originis vestigium in conferendis Feodis milita­ribus; quae alias hastae traditione, alias baculi velut hastae, in jure feodali trans­feruntur. Solebant enim Magnates latifundia sua in portiones dispartiri (quae feoda vocant) ad alendum singulos milites; easdemque ob servitium & subsi­dium [Page 174] in bello clientibus suis hoc modo concedere; adjuncto insuper annulo, ad notandum (reor) fidelitatis Sacramentum, quo Vassallus Domino ratione feodi tenebatur. Admissos sic in Militiam suam suos milites appellabant; etiamsi nunquam in militiam progrederentur sed Vicarios mitterent. Hujus­modi fuisse eos censeo, de quibus in priscis nostris Annalibus Anglicanis saepe legitur, talem venisse tali expeditione cum 100. vel 200. Knights in comitatu suo. Quidam male intelligunt de Equitibus auratis; quidam verisimilius de Militibus gravis armaturae, quos Gallli homes de armes appelant. Tuo utere judicio. Hi vero non videntur olim aliquando prioribus illis inferiores, cum & in domini sui militiam baculi & annuli ceremonia admitterentur; tum & patrimonium una acciperent variis nobilitatum Privilegiis (ut supra videas in Feodum) quo militarem dignitatem splendidius tuerentur. Hoc enim patri­monium, Feodum Nobile dicebatur; quod ad Nobiles solum, non ad rusticos, non ad Burgenses vel opifices transmigraret. Galli igitur Milites antiquos di­vidunt in Chevaliers, Bannerets, & Bacheliers: Cujacius exponit, Equites, Mello Equites, & Vasellos sive Vasallos: nisi malis (inquit) a Buccellariis ducere; quod equidem non probo. Teneat potius primam sententiam, Bacheliers idem esse quod Vassallos, i. e. Milites feodales; non quod meam tueatur assertionem, sed quod ipsa res hoc loquitur, Bacularios seu Bacillarios non minus dici à Baculo seu Bacillo feodali; quam Banneretti, à bannerio; Equites ab equo; feodalibus.

Qui igitur fit, ut caeteri Equites (nam hi etiam equo merebant) feoda non dotati, Bacularii nuncupentur? Forte baculo etiam velut hasta in militiam ali­quando admitterentur; vel ex errore natum, pauciores in plurimorum tran­sisse appellationem, differentia ab Auctoribus non bene observata. Nam Ger­manis utique multos dici censeo Fanlchen, i. e. Vexilliferos, qui vexillo non suscipiunt hodie dignitatem. (Quaere.)

Cum autem Militis instituendi ratio, alia non esset, quam honoraria Can­didati seu tyronis in militiam (ut praefati sumus) susceptio: praestari solita est apud omnes populos vel armorum aliquid conferendo, vel Ceremoniam aliquam ad militiam pertinentem adhibendo.

Romani, sub Imperio, Cingulo usi sunt militari.

Germani Veteres (ut supra declaravimus) scuto & framea.

Longobardi arma integra largiuntur. Sic Turismodus Rex Alboinum, Re­gis Audoini filium, Turismodi filii sui armis insignibus donat. Paul. Diac. Longob. 1. ca. 16.

Salici, Baln [...]o usi sunt; cum aliquo genere Armorum, & ritu sacro. Bal­n [...]o scil. ut purgati intelligerentur à spurcitie corporis & animae. Du Tillet p. 431. &c.

Anglo-Saxones gladium ad altare consecratum à Candidati collo suspendunt.

De Aetate Militari.

AETas Militaris, quae Romanis Virilis dicitur, in exitu anni 16. pueritiae apud ipsos habita est; togamque ideo virilem (ut Germani olim Arma militaria) non sine Religionis ceremonia concedebant; ut mox videbitur. De Germanorum ritu, copiose admodum ex ipso Tacito in praecedentibus. Apud recentiores, Carolus Magnus Ludovicum filium suum 1 jam appellentem adolescentiae tempora, ense accinxit. Aluredus nepotem suum Aethelstanum 2 pue­rum adhuc praemature militem fecit. Henricus I. Gaufridum Comitis Ande­gaviae filium, 3 adolescentiae primaevo flore vernantem, quindecim annorum armis induit. Quid plura? Legitima hinc aetas militaris apud nos habetur annus decimus-quintus; nec auxilium igitur ad faciendum filium suum Militem quis­quam [Page 175] à subditis deposcat feodalis Dominus, ne quidem Rex. Valet tamen junior factus. Rex Edourdus VI. anno aetatis decimo; Henricus VI. quinto▪ Prandens olim aliquando Dubliniae juvenis apud D. Proregem Hiberniae, vidi tenerum quendam adolescentulum prae Militibus aliquot antiquis accum­bentem; nuntiatumque mihi est, ni memoria meretrix, eundem ipsum fuisse quem Prorex alius è sacro fonte susceperat, & in cunis statim Militem fecerat, dum apud Patrem infantuli fortuito hospitaretur. Facto perhibet authori­tatem, quod in Juris nostri legitur Annalibus. ‘Audivi (inquit Thirning Ju­stitiarius 7. Henr. IV. fol. 8.) magnatem quendam, filium quem susceperat, ad sacrum deportasse fontem, arreptoque statim gladio, baptizatum, Militem fe­cisse, Anglice hoc adjiciens, Probus si poteris esto Miles, Armiger vero nunquam fueris. [...]ec mirum hoc in secularibus ministeriis; cum in ipsis Ecclesiasticis, Hugo filius Hereberti Comitis admodum juvenis parvulus, 1 qui nec adhuc quin­quennii tempus explesse videbatur, in amplissimum Remensem Episcopus electus esset. Quantulacunque autem aetate factus est quispiam Miles, liber evadit à Do­mini feodalis potestate quoad Corporis sui ditionem, quam Custodiam vocant. Et peti videtur mihi ratio à majoribus nostris Germanis, quam expressit 2Ta­citus: Ante hoc, Domus pars videtur; mox Reipublicae.

De Evocatis ad Militiam suscipiendam.

ANtiqui Juris est, ut in Regia Coronatione aliisque nonunquam solenni­bus, Rex Breve suum unicuique Vice-Comiti mittat; praecipiens, ut sub­moneat omnes in Comitatu suo, qui censu funguntur militari & non sunt mi­lites, quod tali die ad Regis se praesentiam sistant, militarem suscepturi dig­nitatem. Census hic sub Normannicis nostris Regibus, 5. libris aestimatur; sub Henrico III. decem primo, deinde quindecim. Sub Edv. I. viginti: Ho­die, quadraginta. Excipiuntur tamen ab hac angaria in Stat.—Edw. I. qui vel morbo diuturno, vel aere alieno, vel prole laborant numerosa. Brevis haec est forma:

Rex Vice-Comiti Norfolciae Salutem. Praecipimus, &c.

Proclamatur & de more per Comitatum: sed venientibus & non venientibus à Carolo Rege evocatis sors plerumque eadem. Nesciebant enim qui venerunt, ubi suam exhiberent praesentiam, eandemve facerent Recordari. Opinantur qui­dam coram Baronibus in Scaccario, quidam apud Comitem Marescallum, qui­dam apud magnum Camerarium Angliae; & dum caligant singuli, deviant omnes. Tandem enim definiri perhibent, in Cancellaria Registrandam. Verba autem Brevis sunt, coram Regis praesentia; & dum Regium sic opperiuntur otium at­que bene-placitum, facultatum partem non exiguam, forte etiam & aevi minu­ant. Vice-Comites autem Summonitorum nomina Baronibus exhibent Scac­carii, hi vi [...]issim Commissionariis à Rege delegatis, ad componendum sta­tuendumque de animadversione pecuniaria, in evocatos (velut contumaciae reos) sigillatim imponendae; quam si (gravem licet) non admiserint, vel sub­terfugiendo detrectaverint, è terrarum suarum usu fructibus (quos Exitus vocant) Barones Scaccarii Regi addicunt. Primo termino 40s. secundo 4l. tertio 8l. quarto 12l. quinto 16l. atque ita pro arbitrio assurgentes.

Fuit retroactis seculis animadversio à Commissariis imposita, satis levis; sed hodie gravis admodum: Tenuis enim fortunae viri, olim 20. 30. 40. solidis plectebantur: hodie, libris totidem; Et ditiores nonnulli ducentis, trecentis, quadringentis.

De Modo creandi Militem honoratum: & primum de cingulo Militari.

CUm in creando Milite maxime olim esset necessarium officium Cinguli; de cingulo quidpiam praelibandum. Ejus triplex genus: Civile, zona; Mi­litare, baltheus; Mixtum, cingulum indefinite. Hinc Varro zonam inter vesti­menta refert; baltheum inter arma. Cingulum utrisque convenit, & est tam dignitatis & magistratus, quam militiae symbolum; & à Trojanis seculis hono­rarium, ut Homero passim.

Romani Veteres Equitem honoratum instituebant equo & annulo aureo à Censore datis: Inferiores, Milites qui à Caesaris erant Comitatu, cingulo do­nabant, quo à caeteris innotescerent Militibus. Fuit autem hoc è corio at­que inde Baltheus nuncupatum: nam balgh & beltz Germanis pellem signifi­cat; ut item (quod Galli dicunt pro baltheo) baudeier, l in u & t in d mutatis. Romanum enim nihil censeo genuine quod per th scribitur. Huc autem id Propertii lib. 4. Eleg. 11.

Praebebant caesi baltea lenta Boves.

Balthei seu Cinguli militaris officium fuit, Munire, Ornare, Distinguere, Legio­nem notare, & Arma sustinere.

1. Munire; ideo late compositum, aliasque bullis, alias laminis (ne distrin­geretur) firmatum. Virgil. Aen. lib. 12.

—Humero cum apparuit ingens
Baltheus, & notis fulserunt cingula bullis
Pallantis pueri.—Humero (inquit) ut alibi:
Tum lateri atque humeris Tegeaeum subligat ensem.

2. Ornare; pro fastu militari & lateris dignitate, auro, gemmis, & insigni opere.—Virgil. Aen. 9.

—Rhamnetis & aurea Bullis

Passim Homerus; & supra modum Odyss. XI. sed inferiores intuere. Luith­prandus Hist. Lib. 4. ca. 5. Boso mirae longitudinis & latitudinis habebat balteum, qui multarum & preciosarum splendebat nitore gemmarum.

3. Distinguere: aliàs personas, ut Atridarum apud Homerum aurea balthea: Hectoris, puniceus: Diomedis, discolor. Aliàs Dignitates & Magistratus: ut in Vet. Epigramm. Val. Probi Annot.

Aulica quippe Comes rexi patrimonia clarus,
Et mea patricio fulserunt cingula cultu.

Hinc in Epilogo Edicti Theoderici Regis Italiae, cingulum pro Magistratu ponitur. Nec cujuslibet dignitatis, aut substantiae, aut potentiae, aut cinguli, aut honoris persona; contra haec—esse veniendum. Et apud Suidam, [...], i. e. Cingulum tropice pro facultate (seu authoritate) capitur, quod cincti ad rem gerendam sunt expeditiores. Inde crebro in Canonibus, Judex cinctus. Erat namque Cingulum tam Palatinae quam Armatae militiae insigne. Ideo apud Cassiodorum & Jurisconsultos pro Magistratu dicitur & ejusdem administra­tione. Variar. lib. 6. formul. 12. otiosi cinguli honore praecincta dignitas, i. e. Magistratus citra molestiam dignitas. Et Imperator inferius Judices admo­nens de laudabiliter se gerendo: Grave (inquit) pondus invidiae est, splendere cinguli claritate, & morum lampade non lucere.

4. Legionem notare: Isidorus Origin. lib. 19. ca. 33. Baltheus cingulum mili­tare est dictus, propter quod ex eo signa dependent ad demonstrandam Legionis mili­taris summam, id est, sex millium sexcentorum; ex quo numero & ipsi constituunt.

[Page 177] 5. Arma sustinere: Ensem & Clypeum; & singulare singularem; de quibus multa Homerus, qui & de Thoracis baltheo meminit, Ajacemque Hectori baltheum cum ense dedisse, Iliad. 7. Sidonius Arvernorum Episcopus, qui floruit An. Dom. 470. suo aevo hos cultus attribuit, in Panegyr. ad Anthem. Aug. Car. 2.

Pectora bis cingunt zonae.—Et supra,
Bullis hostilibus asper
Applicat à laeva fulgentem balteus ensem,
Inseritur clypeo victrix manus, &c.

Romanis siquidem frequens, ut pluribus obiter hic inferius. De recentioribus etiam Bartholinus Austriad. lib. 9.

Et mos gemmato mucronem annectere balteo.

Sic à veterimis seculis ad nostram aetatem (qua maxime floret) perductum vi­des cingendi hunc morem: de quo dicam ut Martialis, de Parazomio:

Militiae decus hoc & grati nomen honoris,
Arma Tribunitium cingere digna latus.

Hinc Cingulum velut militiae dignitatumque compendium, in eisdem conferen­dis optatissimum.

Frisones, cum cinctura gladii colaphum impingunt: & hoc à Carolo Magno eorum Praesidi concessnm ferunt in quadam Constitutione; ubi de Militibus agens: Eis gladium (inquit) circumcingat; & dato eisdem, sicut consuetudinis est, manu colapho, sic milites faciat, eisdemque firmiter injungendo praecipiat, ut deinceps more militum sacri Imperii aut regni Franciae, armati incedant—Qui Frisones signum suae militiae a dicta Potestate (i. e. Praeside) recipere debent; in quo Corona Imperialis, in signum suae libertatis à nobis concessa, debeat esse depicta. Ex Francis. Mennenio Tit. ha. 112.

Anglorum erat consuetudo, (non ingressis adhuc Normannis) quod qui Militiae legitime consecrandus esset, vespera praecedente diem suae consecra­tionis, ad Episcopum vel Abbatem, vel Monachum, vel Sacerdotem aliquem, contritus & compunctus de omnibus suis peccatis, confessionem faceret; & absolutus, orationibus & devotionibus, & afflictionibus deditus, in Ecclesia pernoctaret in crastino quoque Missam auditurus, gladium super altare of­ferret, & post Evangelium Sacerdos benedictum gladium collo Militis cum benedictione imponeret: & communicatis ad eandem Missam sacris Christi mysteriis, denuo miles legitimus permaneret’. Haec Ingulphus Saxo, p. 901.

Sic fortissimus Herewardus (qui Normannis tantam facessivit operam) Miles factus est. Hanc tamen consecrandi Militis consuetudinem aspernati sunt Normanni, nec Militem legitimum talem tenebant, (inquit Ingulphus) sed socor­dem Equitem & Quiritem degenerem. Et quorsum, obsecro? Num quod ab Ec­clesiasticis acceperint dignitatem, non à Viris Militaribus? Certe Gulielmus Rufus (qui postea Rex evasit) non a patre suo Gulielmo I. Rege Angliae, sed à Lanfranco Archiepiscopo Cantuariae, in vita patris, Miles factus est, ut Malmesburiensis & Parisius testantur. Num quod ab Altari susceptum gladium? Prequens inter ipsos Anglo-Normannos ritus sub Henrico II. ut perspicue re­fert Auctor coaetaneus Petrus Blesensis, Epist. 94. Sed & hodie (inquit) tyrones, enses suos recipiunt de altari. Et rationem adjungit, ut profiteantur se filios Ec­clefiae, atque ad honorem Sacerdotii, ad tuitionem pauperum, ad vindictam male­factorum, & patriae liberationem, gladium accepisse. Quomodo tuebantur Pro­fessionem? Male, (ut hodie) quod pluribus Blesensis. Num denique, quod in Ecclesia pernoctarent vigilantes & paenitentes? Sospitavit equidem & pius hic usus ad Edouardi I. saeculum, ut è Florilego deinceps videris.

Carolus Magnus, An. 791. Ludovicum filium suum jam appellentem adole­scentiae tempora Ranespurgi ense accingit. Theganus Episc. Trever. de Vita Lud. Pii, pag. 166.

[Page 178] Ludovicus ipse Imperator jam factus filium suum Carolum [Calvum] ar­mis virilibus, id est, ense cinxit, corona Regali insignivit, &c. Idem pag. 271. & Aimoin. lib. 5. ca. 17.

Alfredus Rex Anglorum Aethelstanum suum e filio nepotem puerum adhuc praemature militem fecit, donatum chlamide coccinea, gemmato baltheo, ense Saxonico cum vagina aurea. Malm. Gest. Reg. lib. II. ca. 6. pa. 49.

Henricus III. Anno 1252. ad Natale Domini, baltheo (inquit Parisius) apud Eboracum donavit militari [Alexandrum] Regem Scotiae, & cum eo Tyrones fe­cit▪ 20. Qui omnes vestibus pretiosis & [...]xcogitatis, sicut in tam celebri tyrocinio de­ [...]uit, ornabantur, pag. 802. Intelligo, à Rege datis; nam sic idem Auctor in Anno—.

Et cum legati nepotem cingeret, 30. lib. annuatim redditas ei dedit haeredi­tario, & cuidam alii censum pariter opulentum, pag. 530.

Edwardus I. ter centum simul preciosis donat vestibus, nec dignitatem ta­men confert, donec in Templo nocte peregissent vigilias, ut è Florilego vide­mus. Pluries citaturus sum locum; semel habeatis integrum.

‘Ad augmentandum igitur (inquit) 1 profectionem suam in Scotiam, fecit Rex per Angliam publice 2 proclamari, ut quotquot 3 tenerentur fieri Milites 4 successione paterna, & qui haberent 5 unde militarent, adessent apud West­monasterium in festo Pentecostes, 6 admissuri singuli omnem ornatum mili­tarem praeter Equitaturam, de Regia 7 Garderoba. Confluentibus itaque 8 300. juvenibus, 9 filiis Comitum, Baronum, & Militum, distribuebantur 10 purpura, byssus, syndones, cyclades auro textae, effluentissime prout cuique competebat. Et quia Palatium Regale etsi amplum, tamen ad tot occurren­tium turbam angustum fuit, apud 11 Novum Templum Londini, succisis lig­nis pomiferis, prostratis muris, erexerunt 12 papiliones & tentoria, quo ty­rones deauratis vestibus se singuli decorarent. Ipsa quoque nocte in 13 Tem­plo praedicti Tyrones, quotquot poterat capere locus ille, suas vigilias facie­bant. Sed 14 Princeps Walliae, praecepto Regis patris sui cum 15 praecelsis tyronibus fecit vigilias suas in Ecclesia Westmonasteriensi.—Die autem 16 crastina, 17 cinxit 18 Rex filium 19 baltheo militari in 20 Palatio suo, & 21 de­dit ei Ducatum Aquitaniae. Princeps ergo factus 22 Miles, perrexit in 23 Ec­clesiam Westmon. ut 24 consocios suos militari gloria venustaret.—Princeps autem propter turbam comprimentem non secus sed supra 25 magnum Altare, divisa turba per 26 dextrarios bellicosos, socios suos 27 cinxit. Mat. Westm. An. 1309. pa. 458.’

Sine ut hic breviter notem adnotanda.

1 Profectionem] Quam sub quindena S. Johannis sequenti Rex iniit; & multis in Scotia truculenter gestis, Carleoli obiit anno proximo, i. e. 1307.

2 Proclamari] Non in forma juris per Breve Regium Vice-Comitibus dire­ctum, ut non venientes mulctarentur; aut non venientes & non obtinentes dignitatem, finem, i. e. animadversionem Regi solverent pecuniariam.

3 Tenerentur] Tenebantur olim omnes liberi homines militare.

4 Successione paterna] Ergo filius & haeres Militis, qui patri successurus erat in haereditate, ex jure Miles etiam faciendus erat.

5 Ʋnde militarent] Licet ex patre milite non esset oriundus; tamen si ha­beret unde se in militia sustineret, suscipere tenebatur dignitatem. Et hoc quidem olim fuisse videtur praedium 5. lib. sub ingressu Normannorum.

6 Pentecostes] Unum è tribus majoribus Festis, quibus prisci Reges prodire solebant coronati; convocatisque regni Magnatibus, de arduis consulere & statuere.

7 Admissuri] Suscepturi.

8 Garderoba] Vestiarium. Graecis inferioribus [...] à veste Germano­rum Roch.

¶ [Reliqua pars Commentarii desideratur.]

[Page 179] Galli praeter Cingulum seu Baltheum, gladium adhibent & aurata calcaria, ni­hil sacri interposito. Bartholin. Austriad. 9. pa. 643.

Et mos gemmato mucronem annectere baltheo.

Recentiores plerique nullum tradunt symbolum; sed gladio delibant alii scapulas & pectus Candidati, alii humerum velut percutientes tangunt, dicen­tesque sois Chevalier, au nom de Dieu, gladium apponunt osculandum. Qui humerum feriunt, colaphum impingentium tenent rationem; candidato ve­lut interminantes, ut deinceps nunquam ictum ferat inultus. Vidi aliquando senem Ephaebo filio sic primum porrigentem gladium. Sed hoc Gentilium more, non Christianorum; è quibus ictus olim aliquando miles, respondit, Non verbera tulissem, si non essem Christianus.

Qui olim fiebant Milites.

FIebant olim Milites ex solis militibus vel militiae Candidatis; non servis quantumvis eximiis, non colonis, non rusticis, non burgensibus, non mercatoribus, vel togatis.

Non Servis. Hinc Regis filium carpit Virgilius Aen.

—Quorum primaevus Helenor,
Maeonio Regi quem serva Licimnia furtim
Sustulerat, vetitisque ad Trojam miserat armis.

Vetitis (inquit) armis: quod Helenor licet Regis filius, ex serva tamen natus, servus esset: servisque jure militari vetitum fuit arma ferre. Sic Mercatoribus atque Rusticis, sub quorum appellatione burgenses veniunt, & coloni, L. Julia de vi publica, & Constitutione Frederici Imp. lib. 5. Feud. Togatis; quod in scholis suam habuere militiam, suas dignitates. A Veterum enim mori­bus alienum fuit, ad Gradus provocare suae professioni non competentes. Doctorum primus, quos invenerim, in Militiae dignitatem conscriptus est Bartholus de Saxoferrato Jurisconsultus celeberrimus; qui & cum dignitate Leonem accepit pro insignibus.

Inter classes Ʋrbicas, omnium apud nos primus militari cingulo donatus est à Ric. II. Praetor Londinensis, non servati tantum civis sed regni causa, cum egregium proditorem inter copias coram Rege exultantem pugione oc­cidisset; successoribus facto hanc obtinens dignitatem, pugionemque inscribi clypeo civitatis.

Sunt & qui—aevo—primum ferunt Justitiariorum Angliae Militis donatum titulo. Sed decipiuntur proculdubio; ut copiose viderint in Catalogis nostris Justitiariorum; licet & me alterius interdum nitentem fide non errasse alias haud asseruero. Sub Rege—omnes plerumque Ju­stitiarios Tribunales Milites salutabant. Henricus VIII. selectos tantum ali­quot. Regina Elizabetha (tenax nimium in conferendis honoribus) vix unum atque alterum, praeter summos. Jacobus Rex cataractas aperuit Dig­nitatum, obrepentibus interea (ne asperius dicam) plurimis ignobilibus. Quippe cum in tota Anglia vix 300. reperisset Milites, ipsos statim ter tribus auxit centenariis. Mirum nostro aevo, antiquis vero satis assuetum. Henricus III. nuptias sororis suae cum Alexandro Rege Scotiae mille celebravit Militibus. Sed refert Paulus Aemilius, Philippum Pulchrum Regem Franciae in praelium contra Edouardum III. Regem Angliae, ter mille descendisse Militibus, bal­theo militari (ut ejus utar verbis) virtutis causa donatis.

Qui possunt Militem facere.

EOrum fuit Militem facere, quorum fuit Feodum dare. Nam qui feodum dabat, Militem constituit, & patrimonium insuper adjecit quo aleretur. Minus igitur est, Militem facere, quam & facere & alere. Qui Feudum dare possunt, exprimit Liber 1. de Feudis, Cap. 1. Feudum (inquit) dare possunt, Ar­chiepiscopus, Episcopus, Abbas, Abbatissa, Praepositus; si antiquitus consuetudo eorum fuerit, feudum dare. Dux, Marchio, & Comes similiter, feudum dare possunt, qui Regni vel Regis Capitanei dicuntur. Addit & Valvasores, sed minuta plenitu­dine. Videamus autem an hi milites utique facerent.

Ab Archiepiscopo: Lanfrancus Archiepiscopus Cantuariae, Gulielmum Ru­fum quem nutriverat, Militem fecit, patre adhuc vivente; uti referunt Malmes­buriensis & Parisius, hic in Anno 1087. pa. 13. ille pa. 120.

Sic Goslariae, per concessionem Archiepiscopi (Bremensis) primum se Rex (puta Henr. III. Imp.) arma bellica succinxit. Lambert. Schafnab. in Chro. T. 313.

Ab Episcopo: Annales Dominicanorum Colmariens. in Anno 1298. Vene­rabilis (inquiunt) Dominus de Leichtenberg Argent. Episcopus, fecerat hoc anno ante Festum S. Michaelis Milites; quos omnes vestivit ad minus triplici vestimento; soil. Tunica preciosa, Surgotum nobili vario, Suchornam cum vario precioso. En in uno priscus hic ritus alius; cum dignitate vestimenta largiri. Sic Henricus III. apud Parisium. Et quidem triplicia: quod ex prisca Romanorum con­suetudine ad Equites spectabat; Pediti enim simplex, duplex Centurioni, tri­plex Equiti dabatur.

Sic in Ecclesia S. Dionysii, die Dominica per manus Episcoporum armis accingitur Ludovicus Pius Imperator, qui paulo anterius arma deponere & ante altare ponere coactus est. Thegan. in Vit. ejus pagg. 250. & 253.

Ab Abbate: Sic apud Ingulphum Saxonem, Herewardus cum aliquot aliis cohortis suae tyronibus, à Brando Abbate Burgi S. Petri patruo suo (sub An. 1068. id est, 2. Gulielm. I.) more Anglico, quem dedignati sunt Normanni, Miles factus est. Morem expressit Stowus in Annalibus Vernaculis sub Guli­elmo I. Anno 1061. Herewardus Anglo-Saxo sub An. 1068. (i. e. 2. Guli­elmi I.) patruelem suum Abbatem Petroburgensem adit; confessusque & ab­solutus, noctem totam in Ecclesia vigilans, orans, & jejunans transigit. Mane gladium affert super Altari, quem (finito Evangelio) consecratum, Abbas a collo Herewardi suspendit; benedictumque ipsum & sacra imbutum Eucharistia, Militem dimisit jam legitimum. Abbatibus vero Milites facere prohibuit Synodus Londinensis sub Anselmo Archiep. Cant. An. 1102. Cap. 17. quod apud Eadmerum videas lib. 3. & Malmesb. lib. 1. de gest. Pontif.

De Abbatissa & Praeposito, non habeo quod proferam. Forte quod antiqui­tus consuetudo corum fuerit, feudum dare (ut Lex ait) aut non omnino, aut qui­d [...]m parcius. Viro autem à muliere suscepisse decus Militiae, probrum vi­deretur.

Praeter hos Ecclesiasticos, qui Feodum dare potuerunt, Sacerdoti etiam licuit inter Anglo-Saxones Militem facere. Sic enim Ingulphus: Post Evan­gelium Sacerdos benedictum gladium collo Militis eum benedictione componeret, &c. ut supra.

Haec de Ecclesiasticorum Militibus; quorum gesta Feodalia & privata multo accuratius olim mandabantur literis, quam Laicorum Procerum. Nemo vero opinabitur, Proceres Seculares, quibus totus in Bello genius, minus valuisse in militaribus dignitatibus conferendis, quam Magnates Ecclesiae, belli inimicos.

Ducem Burgundiae, celeberrimum instituisse ordinem Militum aurei velleris, nemo non novit. Et ducem Britanniae suos creasse Milites, inferiu▪patebit.

Marchiones, qui aliud non sunt quam Comites limitanei, Comites vero pri­marii [Page 181] ordinis, parem sine dubio (si non supra) cum Comitibus potestatem habuerunt.

Ad montem, qui castro de Lewes supereminet, se applicant (Barones) ubi ordi­natis alis & arcubalistis atque peditibus bene dispositis, Gilbertum Comitem Glover­niae Comes Leycestriae Symon armis militaribus decoravit. Breviar. de Bello. (Sed hoc forte, ut à Principe Militiae.)

In Veteri MS. Codice familiae Sharneburnorum, legimus, quod in Militia Terrae Sanctae, aevo Regis Ricardi I. Will. de Rustings & Alan de Sharnburne facti sunt Milites de manu Comitis Arundel. tertii. Et Andreas de Sharnburn simi­liter tempore Regis Johannis, de manu Willielmi Comitis Arundel. IV. Et ne Co­mites hoc fecisse à Rege delegatos cogites; Giraldus Cambrensis in Itinerario Cambriae (Ca. 12.) refert, 15. Armigeros (tempore Henrici I.) cingulo mi­litari donatos & armis Dominorum suorum decoratos à Constabulario Castri de Pembrock primipilo Arnulphi de Montgomery. Licuit forte milites suos Feodales hac insignire dignitate, non alienos. (Quaere.)

Sic in An. Gratiae 1306. cum Ducem sibi constituissent Scoti Gulielmum Waleys; militiae (inquit Walsinghamus, in Edw. I.) donatus est cingulo à quodam Comite regionis illius.

Creabantur & à Civibus Belcarii, & in Provincia, (Joh. Tilius de Reb. Gall. lib. 2. ca. de Equitib. pa. 180.)

Poterat & Miles (ut quidam asserunt) eum Militem facere, qui à Patre na­tus est Milite; quod haec dignitas ad talem pertinuisse habita est tam ex jure quam ex gratia; ut ex eo liqueat quod Edouardus I. proclamari fecit per totam Angliam, ut quotquot tenerentur fieri Milites successione paterna, & qui ha­berent unde militarent; adessent gradum suscepturi.

Sic Alexander Rex Scotiae, licet ab Henrico III. Rege Angliae armis cin­geretur militaribus, potuisset tamen (inquit pa. 803.) ipsa arma suscipere à quovis Principe Catholico, vel ab aliquo Nobilium suorum.

Franciscus I. Galliae Rex equestre baltheum & ensem accepit à Petro Baiardo copiarum Praefecto in pugna Marigniana apud Insubres, 17. Kal. Octobr. An. 1515. Chopp. de Doman. lib. 3. Tit. 26. Sect. 13. pa. 574. in med.

Ferdinandus Rex Portugalliae praelium initurus anno 1382. ab Edmundo Comite Cantabrigiae Anglo, in proprio suo regno factus est Miles.

Henricus VI. Rex Angliae in festo Pentecostes An. 1424. regni 4. miles factus est à Duce Bedfordiae subdito suo, Galliae Regente; cum jam vitae & regni annum quartum ageret. Hollinsh. eo anno.

Ludovicus XI. quum ille Remis induta purpura Francici Imperii habenas capesseret, à Philippo Burgundiorum Duce ad hoc rogato Eques cingitur, 18. Cal. Sept. An. 1461. Chopp. Doman. lib. 3. Tit. 26. nu. 13. pa. 574.

Historia de Offa primo, qui strenuitate sua Angliae maxi­mam partem subegit: cui simillimus fuit secundus Offa.

Proceres consulunt Regi (Offae I.) ut filium suum moribus & aetate ad hoc matu­rum, militari cingulo faciat insigniri, ut ad bellum procedens hostibus suis horrori fieret & formidini. Rex celebri ad hoc condicto die, cum solempni & regia pompa gladio filium suum accinxit; adjunctis vero tyrocinio suo strenuis adolescentibus generosis, quos Rex ad decus & gloriam filii sui [armis] Militaribus indui fecit & honorari. fol. 3. a.

Militem autem à non Milite faciendum negarunt Veteres, quamvis à Rege. Cum igitur Ferdinandus Rex Portugalliae An. 1382. in procinctu aciei, vi­ginti quatuor vel eo supra, armis imbuisset militaribus; nunciatumque ei esset, minime illos fore Milites, quod Rex ipse nondum Miles cingeretur; cincturam protinus ab Edmundo Comite Cantabrigiae (qui in acie versabatur) auspicatus, caeteros omnes redintegravit Milites.—Disseraō que por elle naō [Page 182] sero feito Cavalleiro post que ret foset, naō podia fazer Cavalleirs. Eutamo armon Cavalleiro o Cond [...] Aymon de Camburg v fez el rei de novo o [...] mesmos Cavalleiros que tintra feitos o outros. 1382. Chron. de Portug. reform. peto Duarto Nun ez do haō na vida del Fernando. hoio 226.

Et licet justa ev [...]neat ratio, ut inferior semper omnem a superiore referat dignitatem; minor a majore: supremae tamen potestatis Principi, qui cul­minis sui territorium securus non egrediatur, necessario competit, ut non so­lum ab inferiore consequatur hunc honorem, sed a subdito etiam suo & vassallo.

Hodie creandi Militis Privilegium apud supremae Potestatis Principes tan­tummodo retinetur; & his omnibus aeque competit, cujuscunque fuerint gradus aut fastigii. Majores tamen habentnr Milites, qui à Majore consti­tuuntur Principe; & laudatior consuetudo quae antiquior. Danorum Reges (ut mihi auctor est Crantzius) ante—(qui patrum nostrorum memoria floruit) crearunt neminem. Nec Romani (ut dicitur) Pontifices, ante Pau­lum III. qui Nicolaum de Ponte Senatorem Venetum primarium statuit. Quid Dux ipse Venetus, nondum reperi: nec Belgarum Ordines hoc aggressos. Successores vero Pontifices, suos quinque Milites non tantum fecerunt; sed coacta pecunia (ut Sansouinus refert) ordinis alicujus clientelares, suo de no­mine nuncupatos: Milites seil. S. Petri, S. Pauli; Milites—Julii, Pii, Lauretanos, &c.

Morem denique Imperatores Turcici amplexi sunt, ex quo Selnnus trucu­lentus ille Gentilem Belinum egregium pictorem (Constantinopolim accersitum, ut aulam Regiam depingeret) torque & codicillo Militiae donavit. Quaeritur autem an legitimus hic Miles? Sunt enim qui negant: & mihi quidem vide­tur legitimus (ut Juliani olim Milites) sed in militiam conscribi Turcicam, non Christianam. De Principe Excommunicato dignitatem conferente, pa­riter judi [...]andum Canonicis.

Judices sub Equitum Appellatione censeri: scil. Equites esse Palatinos.

APud Romanos, Judices omnes qui non erant Senatores, ex Equitibus legebantur, & equestribus igitur innotuerunt symbolis, annulo, Equo, & angusto clavo. In Equitum vero appellatione non sunt cogniti vulgariter, quod minor haec dignitas sub majori illa delituit. Tametsi Judicum non Equi­tum nomina ferrent (inquit 1Alexand. ab Alex.) tamen Equestris fuisse ordinis, & inter Equites—,haud dubium est. Qui in Provinciam itaque sub Impp. missus est Judex; militum more alias chlamyde donabatur, ut apud Cassiodo­rum videas lib. 6. Variar. ca. 21. alias gladio instruebatur, ut lib. 7. ca. 1. in formula Comitivae Provinciae: Gladio (inquit) bellico rebus paratis accingitur: Sed addit inferius; Arma ista juris sunt, non furoris contra noxios instituta, ut plus pavor corrigat quam paena consumat—Civilis est pavor iste, non bellicus, &c. Haec apud Romanos; & passim similiter. Cum enim populis omnis Borealis (ad exemplum Germanorum) nihil facerent non armati; Magistratus omnis & potestas Judiciaria penes militares retinebatur, ut in Wisegothorum LL. lib. 2. Tit. 2. ca. 26. animadvertas, & in caeteris pluries antiquis legibus. Divisus enim tune populus in militares & agricolas: his autem illos jus dix­isse, clarum est ex Tacito.

Cinguntur [...]g [...]tur Judices, ne non Milites haberentur; sed Palatini non Castren [...]s: quos sie distinguit vetus quidam apud Balbum:

Miles pungit Equum, sed Judex judicat aequum:

[Page 183] Intellige; Miles castrensis pungit equum; sed Miles forensis seu Palatinus, i. e. Judex, judicat aequum.

De Palatino Milite sic Fulbertus Carnotensis in Hymno Paschali Resp. §. 1. pa. 204.

Ipsum canendo supplices
Regem precemur milites,
Ʋt in suo clarissimo
Nos ordinet palatio.

Hinc & Judex, Miles justitiae nuncupatur: quod nostro tempore (inquit Balbus) potest esse una dictio composita, & tunc pertinet ad quoddam officium reddendi justi­tiam. Sed quando sunt duae partes, Miles Justitiae dicitur quicunque est Miles justus. Conradi igitur Faburiens. vocabulo dicatur Miles Justicus, ut sic à justo distinguatur. Videtur Froissardus lib. 1. ca. 177. hunc Militem Justitiae, Chevalier de Loix, Militem juris, appellare. De tribus locutus Militibus, quos Chevaliers vocat: dont les deux (inquit) estoient d' armes, & le tiers de loix: les deux Chevaliers d' armes estoient Monsieur Robert le Clermont gentil & noble grande­ment; l' autre le Signeur de Constan: le Chevalier de loix estoit Monsieur Simon de Bussy, quem Gulielmus de Nanges ejus aequalis dicit fuisse Conseiller au grand Conseil, i. e. à consiliis Privati Consilii Regis, & primus Praeses Parliamenti. (E Carolo Loyseau pa. 130.)

Dicuntur & Juris isti Milites apud Auctorem de la Romant de la Rose, Chivaliers de la lecture, Milites lectionis.

Qui veultu pur la foy defendre,
Quelque Chevalerie emprendre,
Ou soit d' armes, ou soit de lectures,
Ou aultres convenables cures.

De Loco & tempore Creationis.

LOcus quo facti sunt olim Milites non solum solennis fuit propter rei dignitatem; sed etiam sacer: templum, Ecclesia, capella; & in istis pars praecipua, coram Altari. Prementeque aliquando turba (ut in Edouardi I. illis de quibus diximus) super ipsum Altare. Exemplis scatent, quae narra­vimus.

Tantae etiam solennitati dabatur utique solenne Tempus. Ludovicus Pius Imp. ab Episcopis cingitur die Dominica in Ecclesia S. Dionysii. Thegan. pagg. 250. & 253. Sed ad multorum cincturam statuebatur è grandioribus festum aliquod, quo ad Aulam confluentibus regni Magnatibus prodire Rex solebat fastu regio coronatus publice, ut in Natali Domini, Paschate, & Pente­coste. Sic Henric. I. Gaufridum generum suum cum coaevis in festo Pente­costes Rothomagi auctoravit.

Henricus III. Alexandrum Regem Scotiae & 20. alios ad Natale Domini, Eboraci.

Edouardus I. Edouardum filium suum primogenitum & 300. alios ad fe­stum etiam Pentecostes, ut praedicitur.

Praeter haec, & insignes Vestimentorum Apparatus, lautissimis amicos exci­piebant Conviviis; ludisque Equestribus & Mavortiis tyrocinii coronabant festivitatem. Unde Vetus illa Lex, ut auxilium Domino Vassalli suggerant ad sumptus obeundos in filium primogenitum faciendo Militem.

Contra morem igitur antiquum est, quod hodie nonnulli jactant, se creari in procinctu vel sub dio Milites; alios scioli vellicantes, qui in Regia (sub tapete, aiunt) constituti sunt. Sed horum est manu praestare potius quam mente; Marte quam Minerva; Veritas è praemissis liquet.

[Page 184] De Auxilio quod diximus suggerendo, illud apud nos observandum est, ut poscatur solummodo ad filium primogenitum Militem faciendum; haud ta­men antequam aetatis annum 15. exegerit. Nec tum (ut olim aliquando) ad libitum Domini; sed modo & quantitate constitutis: hoc est, 20. sol. sterlin­gorum de quolibet feodo militari, & tantundem pariter de quolibet 20. li­bratu praedii rustici, quod Soccage vocant. Haec, Statuto Westm. 1. ca. 35. An. 3. Edw. I. Et iisdem Rex conclusus est limitibus, Stat. An. 25. Edw. III. cap. 11.

De Censu Militari.

OLim ingens fuit turba Militum, ut ex eo liqueat, quod Militaris census (feodum vocant) centenis tantum solidis aestimaretur: tum vero quod hujusmodi feodorum sexaginta millia supra in Anglia numerata fuerint, licet singula singulis non conferrentur. Patrimonia vero fuisse videantur justorum Militum sub illis seculis. Vetus enim jus nostrum alios non agnovit Milites, cum relevium Comitis 100. libris; relevium Baronis, 100. marcis; & relevium Militis, 100. solidis, definiverit: id est, juxta unius Anni valo­rem sui feodi exemplo quod in Lib. de Feudis reperitur. Et videtur insuper ad Militiae apparatum tunc evocari, quotquot liberi & ingenue tenentes, de praediis, centum annuatim numerabant solidos.

Crescente vero rerum pretio, Henricus III. evocari tantum jubet, qui 10. libratas terrae habebant, ut Parisu utar verbis in An. Dom. 1256. Anno 37. regni ejus, qui 15. libratas terrae possidebant. Chron. Hollinsh. pa. 248. col. 1. Edouardus I. anno suo primo, hos qui 20. libratis gaudebant. Stat. de Milib.

Henricus VIII. regni sui 25. illos solum qui 40. libras de censu praediali percipiunt. Stow. pa. 946.

Modus Exauctorandi Militem; quod De­gradare mincupatur.

DEgradatur Miles, ademptis per ignominiam judicialiter suae dignitatis symbolis: ut caeteri omnes gradu quolibet insigniti. Ut enim ascribi in militiam nemo potuit non legitime; sic nec solvi a militia. Solutionem autem Missionem vocabant Romani; & haec erat triplex, honesta, causaria, & ignominiosa. ff. de his qui no. infa. l. 2. §. ignominae.

Honesta, cum miles consueta stipendia meruisset; quae erant in Praetorianis Cohortibus, annorum 16. in aliis, 20. Tacit. Annal. lib. 1. & L. a. de Veteran. Cod. Theod. & Cod. Just. l. 9. Veteran. fol. 474. d.

Causaria, quae propter valetudinem à laboribus Militiae solvit. ff. de his qui no. infa. l. 2. §. ignominiae.

Ignominiosa, quae in ignominiam Militis facta est; & duplex suit. 1. Cum is qui mitteret, adjiceret nominatim ignominiae causa se mittere: semper enim (inquit Lex) deb [...]t addere cur Miles mittatur. 2. Sed si eum exauctoraverit, id est, insignia militaria detraxerit, inter insames efficit, licet non addidisset ignominiae causa se eum exauctorasse. (ibid. fol. 80. b. V. §. seq. de insamis quid. &c.) Hoc illud Missionis genus est, cui nos jam incumbimus; dabimusque igitur celebre Exemplum ejus ex Herodiano de Severo Imperatore; Praetorianos omnes Mi­lites qui Pertinacem Imp. trucidaverant, pro Tribunali in campo sedente, re­cingendos exauctorandosque decernente. Post latam sententiam, E vestigio (inquit Herodianus) Milites Illirici concurrunt; Praetoriamsque breves illos gladios detrabunt, quos auro argentoque ornatos in usum pompae suspensos habebant. Tum zonis, vestituque, & caeteris militiae insignibus per vim ablatis, nudos ad unum exau­ctoratosque dimiserunt. In Severo Sect. 1. pa. 223. To. 11. Ignominiae causa [Page 185] missis neque in urbe, neque alibi ubi Imperator est, morari licet. (ff. de his qui not. intam. §. Miles. fol. 80.) Inde Aemilius Macer, qui ignominia missus est, neque Romae, neque in sacro Comitatu agere potest. (In l. milites. §. ignominiosa, ff. de re milit.)

Hinc exauctorandi nostri Militis Aurati caeremonia. Auctorari autem dici­tur, cum quis ad aliquid faciendum obligatur, ut miles ad militiam, &c. Ex­auctorari hic igitur est, ab obligatione militari solutum esse: quae solutio & dignitatem tollit, & annexa Privilegia. Vulgo dicitur Degradatio, quia gra­dum tollit. Fit igitur omnis Exauctoratio seu Degradatio, auferendo per igno­miniam judicialiter ipsa eadem insignia, quibus collata est dignitas vel gradus; cum in secularibus tum in Ecclesiasticis; ut sigillatim ostenderem, si prolixi­tatis non puderet. Sequemur igitur quod in Thesi est; & omissis Romanorum exemplis, recentiora quaedam proferemus.

Memorabilis est prae caeteris omnibus male-sana illa Exauctoratio Ludovici Pii Imperatoris Christianissimi ab Episcopis An. Dom. 917. Compendii perpe­trata: Longa est injuria, longae ambages; quas in Auctoribus illius seculi, & nominatim in Libello; qui Tegano subjungitur, Exauctoratio Ludovici Pii nun­cupato, fuse legas. Coëgerunt autem mitissimum Principem (ut recentius Angli Ricardum II.) reatuum quos imposuerant articulis subscribere, poeni­tentiamque cum tristissima confessione profiteri. Post hanc Confessionem (inquit Auctor) Chartulam suorum reatuum, & Confessionis, ob futuram memoriam Sacer­dotibus tradidit, quam ipsi super Altare posuerunt: ac deinde cingulum Militiae de­posuit & super Altare collocavit, & habitu seculi se exuens, habitum Poenitentis per impositionem manuum Episcoporum accepit; ut post tantam talemque poenitentiam, nemo ultra ad militiam secularem redeat. p. 147. & seq. Vides hanc Exauctora­tionem retrograde fieri eisdem vestigiis quibus sub hoc seculo ipsa facta est Militis (ut loquuntur) Creatio seu auctoratio. A Viris Ecclesiasticis, in Eccle­sia, coram Altari, praemissis confessione & poenitentia, solutione cinguli mili­taris, ejusdemque repositione super Altare unde in Auctoratione desumptum fuit; exuto etiam demum seculari, hoc est militari, habitu, ut nunquam po­stea ad militiam esset redeundum.

Haec de morbo illius tempestatis: recolitur tamen Imperator denuo & cin­gulo militari ab ipsis Episcopis (ut supra diximus) & omnibus aliis suis in­signibus.

Exauctoratur & circa hoc tempus, paulo anterius, Odo quidam Ludovici familiaris, armis scil. ablatis, ipsoque in exilium deportato. Vit. Lud. Pii, p. 238.

Notandum autem est, sub voce Cingulum, intelligenda arma omnia, & ip­sam militandi facultatem: eoque sensu in Historiis, Conciliis, & Jure Caesareo passim occurrere cingulum tollere, amittere, perdere, & hujusmodi.

Accedo ad viciniora, & nostratia. Andreas Harkela Miles Auratus & Comes Carliolensis, sub An. Dom. 1323. seu 17. Edw. II. reus agitur coram Gau­srido de Scrope summo Justitiario Regii Tribunalis (ut quidam perhibent,) vel Antonio de Lucy (qui eum comprehenderat) ut alii referunt; recte coram u­troque, de re Anglorum Scoto prodenda. Cumque lata esset sententia, ut spoliatus tam Comitiva dignitate quam Militari, morte pro more Traditoris afficeretur: statutus est ad repagulum Tribunalis, ocre [...]s, calcaribus, pellito collobio, vestibusque aliis Comitivis indutus. Prodiens tunc, ex mandato Antonii, ribaldus quidam, calcaria primum ab Harcleae calcibus detruncat; fractoque super capite ejus Comitivo gladio, quem in custodiam tutelamque Comitatus Rex ei praebuerat, vestibus spoliat & cingulo militari. Spolia­tum denique sic alloquitur Antonius. ‘Ribaldus jam efficeris & tu ipse An­dreas, qui nuper Miles fueras & vir dignitatis. Proditionem vero suspendio lues, tractus, evisceratus, & intestinis crematis, quadrifariam dissectus, capi­teque minutus, &c.’ Codex Vernac. MS. Ca. 195.

Specimen aliud habes à Radulpho de Grey, qui cum fidem Regi Edouardo IV. juratam fefellisset; captusque postea, in Castello Bamburgensi supremam [Page 186] subiturus esset sententiam; Comes Worcestriae Constabularius Angliae pro Tribunali sedens, reum his affatur: ‘Radulphe, statuerat Rex tuae proditionis ergo, ut calcaria tibi juxta ipsos calcaneos ab archimagiro (quem praesto hic vides praecinctum lint [...]o, & instructum cultro) discuterentur. Adsunt etiam ex mandato Regis (ut ipse hic vides) Rex Armorum & Heraldi alii cum tu­nica insignium tuorum militarium, quam à corpore tuo dilacerantes avelle­rent, ut tam nobilitatis tuae & insignium Gentilitiorum spoliareris, quam dignitatis tuae militaris. En & alia tunica tuorum armorum reverso ordine depictorum, qua ad supplicium raptus induereris, tanquam ex jure ad te pertinente. Degradationem tamen tuam à militari dignitate, armorumque & Nobilitatis tuae ademptionem remisit & pepercit tibi Rex; corum memor, quae praeclarus avus tuus in causa illustrissimorum praedecessorum ipsius Regis passus est.’ Lato tandem judicio, ad supplicium tractus est truncatusque ca­pite, ut Stowus refert: sed ut Fabianus, tractus, suspensus, & quadripartitus, An. Dom. 1464. Regis 4.

Consedente pro Tribunali regio in aula Westm. D. Thoma Howard Co­mite Arundelio summo Angliae Comite Marescallo, auream ferente muneris sui virgam, adjunctis a dextra & à sinistra—Franciscus à ministro ad repagulum Curiae adducitur, & parte interiori super scamno collocatur è re­gione D. Marescalli; stans & vestitu quo solet palliatus, sed ocreis & calcari­bus auratis indutus, gladioque cinctus qui per Baltheum coriaceum à dextro humero ad sinistrum dependebat latus. Facto silentio legebatur publice ab Heraldo libellus, reatum suum & sententiam inferioris conclavis Parlamen­tarii continens. Quo finito, corrigia calcariorum ejus discidit—; ar­reptaque calcaria projiciebat in aulam: deinde discidit baltheum, curavitque ut gladi [...]s in terram caderet: quia in militaribus Exercitiis lateri ignominiae sit, si qua pars armorum ad terram ceciderit; ideoque Heraldorum juris est.



E veteri MS. recensuit D. HENRICUS SPELMANNUS.

Non vulgare vides Monumentum; forte videbis
Haud duo praeterea talia, siqua vides.
No vulgar Monument you see, scarce two
The like you'l find, if any one you do.


LOngo tempore post adventum Saxonum Paganorum in An­gliam, 1 fuit quidam Thokus qui fuit Paganus Dominus de integra villa de Shenebruina, & habuit unam filiam, quam dedit cuidam homini strenuo vocato Ingolf; & cum ea de­dit ei totam terram & mariscum quod ipse habuit versus occidentem praedictae villae de Shenebruina usque mare, ubi ipse Ingolf quandam villam fecit, & vocavit illam nomine suo Ingolfestorp. Et Sanctus Foelix quando venit de Burgundia per consilium Honorii Archiepiscopi Cantuar. applicuit in partibus Estanglorum quae po­stea dicta fuit Norfolchia & Suffolchia, & convertit ad fidem Eorpwaldum Re­gem illius patriae & baptizavit eum, viz. An. Dom. .....

Et postea per licentiam praedicti Eorpwaldi Regis ivit per mare versus partes 2 occidentales illius patriae, & applicuit apud Babynglee, & convertit ad fidem Dominum & omnes homines illius terrae, & fecit ibidem aedificari unam Ec­clesiam, quae fuit prima Ecclesia illius partis Norff. Et deinde ivit ad Shene­bruinam & baptizavit praedictum Thokum, & omnes homines suos, & praecepit ei ut ipse faceret ibi unam Ecclesiam, & fecit ibi unam parvam Ecclesiam de Me­remio, quae vocabatur per longum tempus le Stoke Chappel, & postea fuit dedi­cata per praedictum Sanctum Foelicem in honorem Apostolorum Petri & Pauli, & sic fuit illa Ecclesia in Shenebruina secunda Ecclesia illius partis Norff. & ita fuit praedictus Thokus effectus Christianus, & tota vita sua fuit 3 Dominus de integra villa de Shenebruina, & haeredes ejus similiter post eum fuerunt Domini ejusdem villae usque Canutus Rex Danorum conquestus fuit Angliam. Quo tempore quaedam puella de progenie praedicti Thoki, & haeres sua linealiter descendendo fuit Domina de integra villa de Shenebruina Notapraedicta, quae desponsata fuit cuidam Edwyno, qui venit in Angliam cum prae­dicto Canuto Rege Daniae, ut patet in sequenti. Edwinus Dacus venit de Dacia (i. e. Denmark) in Angliam cum Canuto Rege Danorum Anno Domini millesimo XIV. quando ipse Canutus debellavit cum Edredo Rege Angliae, & post mortem 4 praedicti Edredi ipse Canutus pluries pugnavit cum Rege Edmundo Ironsyde filio praedicti Edredi, & ad ultimum concordati fuerunt, ita quod praedictus Edmundus haberet totam Angliam ex parte Australi Thamysiae, & praedictus Canutus haberet aliam partem Angliae ex parte Boriali praedictae Thamysiae, quo tempore idem Canutus dedit praedicto Edwyno villam de Neteshamia integram cum toto dominio integro & plures alias terras in Comit. Norff. Et similiter dedit ei unam planiciem non cultam sed vastatam, versus Orientem à praedicta villa per sex miliaria Anglicana, ubi idem Edwynus invenit quendam collem, 5 & hogum petrosum, & ibi ipse incipiebat aedificare quandam villam & vocavit [...]illam Stonhogia, quae postea vocabatur Stanhowe. Et postea ipse Edwynus de­sponsavit quandam puellam, quae fuit Domina de integra villa de Shenebruina; & cito postquam desponsabat illam ipse cepit praedictam villam, quam ha­buit [Page 190] cum uxore sua de Canuto Rege, tenendam de ipso insimul cum donatio­nibus, quas illi prius dederat; & sic fuit ipse Edwynus Dominus integrè de prae­dictis villis, & obtinuit omnia praedicta in pace quousque Willielmus Bastardus Dux Normannorum cepit Angliam super Haraldum Regem, qui coronatus 6 fuit Rex apud Westm. An. Dom. millesimo LXVI. Et post coronationem ipse dedit diversas terras in Anglia diversis hominibus, qui secum venerunt in auxilio ad Angliam conquirendam. Inter quas dedit Willielmo de Albeney Pincernae suo, & Willielmo de Warennia forestario suo diversas terras, & dominationes in Comit. Norff. & alibi in Anglia: & praedicti Willielmus Pincerna, & Williel­mus de Warennia, & omnes alii qui venerunt cum praedicto Conquestore eje­cerunt diversos homines infra dominationes suas omnibus de terris, & domi­nationibus suis; inter quos praedicti Willielmus Pincerna, & Willielmus de Waren­nia ejecerunt praedictum Edwynum de praedictis duabus villis, & omnibus aliis 7 terris, & dominationibus suis. Propter quod idem Edwynus, & alii quidam qui ejecti fuerunt abierunt ad Conquestorem, & dixerunt ei, quod nunquam ante conquestum suum, nec in conquestu suo, nec post fuerunt contra ipsum Regem in consilio & auxilio, sed tenuerunt se in pace, & hoc parati fuerunt probare, quomodo ipse Rex vellet ordinare, propter quod idem Rex fecit in­quirendum per totam Angliam, si ita fuit, quod quidem probatum fuit; propter quod idem Rex praecepit ut omnes illi qui sic tenuerunt se in pace in forma 8 praedicta, quod ipsi retinerent omnes terras, & dominationes suas adeo inte­gre & in pace, ut unquam habuerunt & tenuerunt ante conquestum suum, & quod ipsi imposterum vocarentur Drenges; super quod idem Rex ad sectam prae­dicti Edwyni mandavit praedictis Willielmo Pincernae, & Willielmo de Warrenia quod ipsi deliberarent praedicto Edwyno omnes terras, & dominationes suas ex quibus ejecerunt eum, qui inde nihil voluerunt facere; sed praedictus Willi­elmus Pincerna dedit eidem Edwyno unum messuagium, CCC. acras terras, & tres faldas in Snetesham, qui inantea vocabatur Netesham tenendas de eodem Willielmo Pincerna per certa servitia & retinuit ad opus suum & opus Willi­elmi 9 de Warrenna residuum praedictae villae de Snetsham, unde ipsi feoffaverunt alios de hominibus suis qui secum venerunt de Normannia. Et praedictus Willielmus de Warrenna dedit similiter eidem Edwyno unum messuagium, CCCC. acras terrae, & quatuor faldas in Sharnebourne cum dominio ejusdem villae quae inantea vocabatur Shenebruina tenendas per certa servitia de cadem Willielmo de Warrenna, & retinuit ad opus suum residuum ejusdem villae de Sharneburn cum advocatione Ecclesiae, unde ipse feoffavit alios de hominibus suis qui secum de Normannia venerunt. Et post istas dominationes factas praedicto Edwyno per praedictos Willielmum Pincernam, & Willielmum de Warrenna, Dominus Rad. de [...]or [...]neys qui similiter venit in Angliam cum praedicto Con­questore, 10 & cui idem Rex dedit terram de Suthm. cum membris in Comit. Norff. cepit praedictum Edwynum, & ipsum incarceravit, perque longum tempus in prisona detinuit, quousque idem Edwynus evasit per noctem extra prisonam, & abiit praedicto Willielmo Pincernae, & fecit ei querimoniam de injuria sibi facta, & supplicavit [...]i ut ipse posset tenere de illo praedictam villam de Stanhowe, qui noluit, sed ipse cum Willielmo de Warrenna ceperunt praedictam villam de Stanhowe, in manibus suis & praedictus Willielmus Pincerna dedit praedicto Edwyno unum messuagium, CCCC. acras terrae & quatuor faldas in praedicta villa de Stanhowe tenendas de eo per servicium XLd. per annum, & 11 residuum ejusdem villae de Stanhowe cum advocatione Ecclesiae retinuit ad opus suum & ad opus Willielmi de Warrenna qui inde feoffaverunt alios de hominibus suis qui secum venerunt de Normannia, ut supradictum est. Et postea idem Willielmus Pincerna mandavit in Normandiam pro una filia Bastarda sua, quam ibi procreavit ante adventum suum in Angliam & illam dedit A [...]euro filio praedicti Edwyni, & per hoc fuit idem Edwynus in pace tota 12 vita sua, ita quod nullus ausus fuerit postea ei injuriam facere nec damnum. Et praedictus Edwynus cito post praedictum maritagium obiit in senectute [Page 191] sua post multas tribulationes suas tempore praedicti Regis Willielmi Con­questoris. De quo Asceurus, ut supradictum est, qui desponsavit filiam Willi­elmi AsceurusPincernae bastardam, ut supradictum est, & tenuit totam haereditatem suam in pace post mortem praedicti Edwyni patris sui, & obiit in senectute sua in ultimis annis regni Regis Stephani. Et ipse Asceurus procreavit de uxore sua praedicta tres filios & plures filias, & ipse Asceurus divisit praedictis tribus filiis suis totam haereditatem suam. De quibus Galfredus filius praedicti Primus [...]i­liu [...] [...]. Asceuri primogenitus desponsavit Etheldredam filiam Rogeri de Dersyngham, & ipsa fuit pulcherrima domina, quia inantea ipsa desponsabatur Domina Ful­coni de Sharneburn, & similiter post mortem praedicti Galfredi illa Domina de­sponsabatur Domino Rogero Rustengs, ut patet alibi, & iste Galfredus suit Ca­pitalis 13 Seneschallus Willielmi Comitis Arundelliae, filii praedicti Willielmi Pincernae, de omnibus terris suis tam in Anglia quam in Normannia. Et idem Galfredus procreav it de praedicta Etheldreda uxore sua tres filios & tres filias, ut patet inferius, & idem Galfredus obiit die Sanctae Agathae virginis, tempore Regis Henrici secundi filii Matildis Imperatricis, & praedicta Domina Ethel­dreda obiit die Sancti Cuthberti tempore Regis Johannis.

Secundus filius Asce­uri & eju [...] [...]itus. Ricardus secundus filius praedicti Asceuri desponsavit Amiciam filiam ..... de Lynnea veteri in partibus Mershlandiae ex parte occidentali Ripae, & cum illa habuit ibi magnam haereditatem, de quibus Robertus, qui vendidit totam haere­ditatem, quam habuit in partibus Mershlandiae antecessoribus Jacobi Baynard; de 14 quo Roberto exivit Ricardus, de quo Robertus, de quo Petrus, de quo Sabina & Petronella, & plures filii & filiae, & praedicta Sabina desponsata fuit Johanni filio Philippi Pynchom de Castle-Rising, & praedicta Petronella nupta suit Johanni filio Radulphi Panton de Dockyngs.

Tertius fili­us praedicti Asceuri. Robertus tertius filius praedicti Asceuri obtinuit multa beneficia Ecclesiastica in diversis locis cum Decanatu Lenniae, & habuit tres filias. Unde prima filia desponsabatur cuidam Willielmo filio Radulphi de Snetesham, & secunda filia nupta fuit cuidam Hamundo de Snetesham; & tertia filia nupta fuit cuidam Waltero de Snetesham. Et de praedictis Willielmo filio Radulphi, & uxore sua filia praedicti Roberti filii Asceuri exivit Radulphus, & plures filii & filiae, de 15 praedicto Radulpho secundo exivit Willielmus, de quo quaedam puella quae nupta fuit Galfredo de Say de Dersyngham, de quibus Galfredus de Say, qui ven­didit totam haereditatem, quae ei descendebat post mortem Matris suae, cuidam Hervio Ʋnderburg de Bennham & aliis hominibus de Snetesham, & de prae­dictis Hamundo & uxore sua secunda filia praedicti Roberti filii Asceuri exivit Galfredus, de quo Alanus, de quo Galfredus, de quo Wymerus, de quo Robertus Wymer, qui vendidit totam haereditatem suam in Snetesham, Sharneburn, & Dockyng Domino Johanni de Ingoldesthorp & aliis hominibus. Et de praedictis 16 Waltero & uxore sua tertia, filia praedicti Roberti filii Asceuri exivit Galfredus, de quo Galfredus, de quo Johannes, qui vendidit totam haereditatem suam in Stanhowe Andreae de Sharnebourne secundo & totam haereditatem suam in Snetesham, & Sharneburne vendidit aliis diversis hominibus de quo Thomas Bul­wer de Snetesham.

Modo dicendum est de Etheldreda quae fuit uxor Galfredi filii Asceuri; Rogerus de Dersyngham fuit quidem homo dives ex nobili progenie & habuit unum filium, qui vocabatur Robertus de Dersyngham post mortem patris sui, & unam filiam pulcherrimam quae vocabatur Etheldreda, & Dominus Fulco de Sharne­bourn in equitando versus Lennam vidit illam stantem juxta viam in Der­syngham, 17 & ipsam concupivit propter pulchritudinem suam, & tam cito quam ipse rediit in domum suam ipse mandavit praedicto Rogero, ut ei vellet dare praedictam Etheldredam filiam suam in uxorem. Quo letaliter concedente & Primus ma [...]tus E­theldredae, & [...] [...] ­itus.cum ea multam pecuniam promittendo, dictus Dominus Fulco ipsam despon­savit & ex eadem Etheldreda procreavit dominum Eudonem de Scharnburn, & plures filios & filias. Et de ipso Eudone exivit Galfredus & plures filii & filiae, & idem Galfredus desponsavit Rosamundam filiam Will. filii Roberti de Ingold­sthorp [Page 192] 18 consanguineam domini Thomae de Ingoldstorp senioris, de quibus Will. & plures filii & filiae, de quo Galfredus & plures filii & filiae, de quo Willielmus, Thomas & Johannes & duae filiae, & praedicti Willielmus, Thomas & Johannes obie­runt, & praedictus Willielmus post mortem filiorum suorum dedit domino [...]. Andreae de Sharneburn quarto totam haereditatem suam. Et post mortem prae­dicti domini Fulconis praedicta domina Etheldreda desponsabatur Galfrido filio Asceuri, ut supradictum est, qui ex ea procreavit tres filios & quatuor filias, [...].ut patet inferiu [...]. Et post mortem praedicti Galfredi filii Asceuri praedicta do­mina Etheldreda desponsabatur tertio domino Rogero de Rusteyng, qui fuit Capitalis Senescallis Willielmi Comitis Arundelliae tertii, & idem Rogerus ante­quam desponsavit praedictam Etheldredam factus fuit Miles in terra Sancta de Jerusalem tempore Regis Ricardi de manu praedicti domini Willielmi Comitis tertii. Et post reditum suum de Jerusalem ipse desponsavit praedictam E­theldredam, ut supradictum est, qui ex ea procreavit dominum Willielmum & plures filios & filias. It de ipso Willielmo exivit dominus Willielmus secun­dus, & dominus Rogerus Rusteyngus Rector Ecclesiae de Ingoldsthorp & Freyngz. Et de ipso Willielmo secundo exivit Willielmus tertius & quatuor filiae, videlicet. Milicentia prima filia, quae desponsata fuit domino Reginaldo de Sancto Martino fundatore Canonicorum de Hempton. Alicia secunda filia desponsata fuit domino Waltero de Wygenhall. Margareta tertia filia desponsata fuit domino Johanni de Ʋvedale. Beatrix quarta filia desponsata fuit Gilberto de Tuckwell. [...]t praedicta domina Etheldreda post mortem praedicti domini Rogeri viri sui nunquam fuit desponsata, & ipsa vixit sola ad totam vitam suam sine viro. Et obiit die Sancti Cuthberti tempore Regis Johannis.

[...]. Modo dicendum est de filiis & filiabus Galfredi filii Asceuri & praedictae Etheldredae uxoris suae. Dominus Alanus fuit primus filius praedictorum Gal­fredi & Etheldredae, & factus fuit miles in terra Sancta de Jerusalem tempore Regis Ricardi de manu Comitis Willielmi Arundellii tertii, eo tempore quo do­minus 21 Rogerus Rusteyng secundus fuit miles, & cum eodem Alano fuit ibidem tune temporis Petrus frater praedicti Alani. Et idem dominus Alanus in tota vita sua non habuit uxorem nec exitum, nisi unum filium bastardum, qui voca­batur Robertus de Sharneburn, & aliquando Robertus filius Alani de Sharneburn communiter Robertus de Hall; & idem dominus Alanus obiit tertio die Junii [...]tempore Regis Ricardi. Dominus Andreas secundus filius praedictorum Gal­fredi, & Etheldredae factus fuit miles in terra Sancta de Jerusalem tempore Regis Johannis de manu Willielmi Comitis Arundelliae quarti. Et post reditum suum de terra Sancta ipse desponsavit Susannam filiam domini Benedicti de 22 Ang [...]ivilla, domini de Westnewton, Suyton & Herlyngs, & cum praedicta Susanna ipse habuit totam tertiam partem totius haereditatis praedicti Benedicti, sed nullum exitum habuerunt inter ipsos, propter quod ipse non tenuit prae­dictam tertiam partem nisi ad totam vitam praedictae Susannae; & post mor­tem ipsius Susannae idem dominus de Andreas desponsavit Aliciam quae fuit uxor Sylvestris de Risinges, sed nullum exitum habuerunt inter ipsos. Et prae­dicta domina A [...]cia super vixit praedictum dominum Andream virum suum, & ibidem dominus Andreas obiit die Sancti Alphegi Episcopi, Anno Dom. millesimo CC. XLIX. & Regni Regis Henrici filii Regis Johannis XXXIV. Et sepultus est apud Sharneburn in Capella coram Altarem Beatae Mariae, prope [...]parietem Australem. Petrus tertius filius praedictorum Galfredi & Etheldredae in redeundo de terra Sancta de Jerusalem cum domino Alano fratre suo re­mansit retro praedictum Alanum in Francia cum quodam magno Domino 23 illius patriae, qui non habuit haeredem nisi unam filiam pulcherrimam, quam [...]praedictus Petrus incipiebat amare, & illa consentiente eidem Petro * & tem­pore praedicti amoris pater puellae praedictae obiit, & sic illa puella remansit sola, & sine consilio nisi de matre sua. Quo tempore dictus dominus Andreas de Sharneburn frater praedicti Petri, antequam ipse factus fuit miles, ivit in terram Sanctam de Jerusalem, cum Willielmo Comite Arundelliae quarto, & venit [Page 193] in illa parte Franciae ubi praedictus Petrus remansit, & fecit ipsum [...]re secum in terram Sanctam, & post reversionem praedicti Andreae idem Petrus re­mansit cum praedicta puella & matre sua. Quo tempore ipsa puella fuit praegnans per praedictum Petrum, & peperit unam filiam, & in secundo anno postquam praedicta puella fuit deliberata de filia sua praedicta, idem Petrus au­divit dicere, quod Susanna, quae fuit uxor praedicti Andreae fratris sui, fuit 24 mortua sine liberis, propter quod ipse Petrus desideravit ire in Angliam ad fratrem suum; & venit ad praedictam puellam, & petiit licentiam ab ea, ut ipse possit redire in Angliam ad loquendum cum fratre suo, & illa ei concedit licentiam malevole, & tristi corde, & dixit praedicto Petro, ‘Modo scio bene, quod quam citius venies ad hospitium habebis me in oblivione, & tibi capies aliam uxorem;’ & idem Petrus dixit quod non, & hoc affirmabat per jura­mentum & fidem suam dando, & tunc illa dixit tali conditione expectabo te per septem annos, ita quod non capiam maritum nec ullum virum donec prae­dicti septem anni erunt elapsi. Et tunc idem Petrus rediit in Angliam, & 25 antequam ipse perventus fuit ad hospitium, praedictus dominus Andreas de­sponsavit Aliciam, quae fuit uxor Sylvestri de Rysinge, qui receperunt praedictum Petrum letanter, & cum magno gaudio: & post pusillum idem dominus An­dreas & Alicia uxor ejus dixerunt eidem Petro, ut ipse desponsaret Ceciliam fi­liam praedictorum Sylvestri & Aliciae, & ipse nullo modo voluit consentire, nec concedere, propter quod idem dominus Andreas multum irascebatur versus praedictum Petrum, & dixit ei, si nollet ipsam Ceciliam desponsare quod nun­quam deberet esse haeres suus post mortem suam. Et quia praedictus Petrus bene sciebat, quod praedictus dominus Andreas & domina Alicia nunquam ha­buerunt haeredem de corporibus eorum, & ipse timuit quod idem dominus Andreas in ira sua ipsum dishaeredaret, ipse desponsavit praedictam Ceciliam 26 tali conditione quod nunquam dishaeredaretur, & praedictus Andreas hoc concedens, & per juramentum affirmans dedit ei, & praedictae Ceciliae uxori ejus situm manerii sui in Snetesham, & terram suam in eadem villa de Snetesham. Et praedictus Petrus genuit de praedicta Cecilia quinque filios & unam filiam, ut patet inferius. Et praedictus Petrus post mortem praedictae Ceciliae rediit in Franciam ad praedictam puellam, quam ipse prius amabat, & quam citius ipsa puella ipsum vidit dixit ei, quod ipse fregisset conventionem quam ipse secerat, quia septem anni fuerunt translati multo tempore elapso; & dixit, 27 bene scio quod duxisti uxorem; & ipse respondit quod non haberet uxorem, sed non potuit denegare, quod ipse habuit uxorem quae mortua est, & dixit quod hoc fecit per cohortationem ratione dishaeredationis suae, & tam cito quam ipsa hoc audivit juravit, quod nunquam caperet ipsum nec alium virum, sed ipsa viveret sola sine viro tota vita sua, & maritaret filiam suam, quam ipse Petrus procreavit; & idem Petrus hoc audiente juravit similiter, quod ipse nunquam haberet uxorem; sed solus viveret sine muliere tota vita sua, & sic fecit, & postea idem Petrus ivit ad Comitem de Campania, & cum ipso fuit per longum tempus quousque ipse audivit de morte domini Andreae fratris sui. Quo audito ipse rediit in Angliam, & venit apud Sharnburn, & 28 ibi vixit tota vita sua cum filiis suis, & obiit vivente praedicta domina Alicia, videlicet in Vigilia Sancti Andreae Apostoli, Anno Dom. millesimo CC. LIX. & Regni Regis Henrici filii Regis Johannis XLIV. & sepultus est in Capella Ecclesiae de Sharnburn coram Altari Beatae Mariae, juxta dominum Andream fratrem suam ex parte boreali.

Prima filia Galfredi & Ethel­dredae, & ejus exitus. Prima filia praedictorum Galfredi & Etheldredae vocata Matildis desponsata fuit domino Nicholao filio Radulphi Dockyng, item dominus Ricardus de Senges, dominus de Berwick, dedit plures terras in Dockyng, & alibi in maritagio cum praedicta Matilde, de quibus dominus Ricardus, de quo dominus Nicholaus, de quo Ricardus qui vendidit totam haereditatem domino Johanni Lovel seniori, & aliis diversis hominibus de quo Nicholaus of Hall, pauper manens apud Norwic.

[Page 194] 29 Secunda filia praedictorum Galfredi & Etheldredae vocata ..... desponsata [...]suit domino Alano filio Robert [...] de Ingoldsthorp, de quibus dominus Thomas qui vocabatur [...] Thomas, de quo dominus Thomas qui suit Vice-Comes Norff. de [...]uo [...] Johannes, qui suit ad Baneram in guerra cum Edwardo Rege [...] de [...]o dominus Thomas, de quo dominus Johannes, de quo dominus [...] Ingoldsthorp.

[...] [...] praedictorum Galfredi & Etheldredae vocata ..... desponsata suit [...] Nicholao de Testes, de quibus dominus Rogerus, de quo Thomas, [...] patre suo, de quo Rogerus ultimus.

3 Quarta [...] praedictorum Galfredi & Etheldredae vocata Isabella desponsata [...]suit ..... de quibus Matildis, quae desponsata suit Albino de Stamford ma­nenti in [...] de quibus Johannes Aubyn de Hillyngton, & Ricardus Aubyn D [...]anus de He [...]am.

Modo dicendum est de domina Alicia, quae fuit uxor domini Andreae de [...] de primo viro suo, domina Alicia, antequam ipsa desponsabatur do­mino Andrew de Sharnburn, desponsata suit Sylvestro de Rysings cuidam homini diviti multas habens terras in Rysings, West-Newton & alibi, de quibus Cecilia quae desponsata fuit Petro de Sharnburn, ut patet superius, & quaedam alia filia quae desponsata suit Thom [...]e Sorel de Oldlynne seniori. Et unus filius qui vocabatur Willielmus Sylvestre, de quo Andreas Sylvestras manens in Cong­ham, de quo Cecilia quae desponsata fuit Willielmo Attechirch de Wulfurton seni­ori, & Alicia quae desponsata fuit Adae A [...]ary de Sharnburn seniori. Et prae­dicta domina Alicia fieri fecit Cancellam de Sharnburn, & sepulta est in eadem Cancella, & ipsa obut tertio Idus Sept. Anno Dom. millesimo CC. LX. & Regni Regis Henrici filii Johannis XLV. Et Cecilia quae suit uxor Petri de Sharnburn obiit XI. Cal. Oct. Modo dicendum est de exitu Petri de Sharn­burn, [...]& Ceciliae uxoris ejus. Johannes filius praedictorum Petri & Ceciliae pri­mogenitus obiit sine haerede de se procreato vivente patre suo, vid. VII. Idus Nov. Andreas secundus filius praedictorum Petri & Ceciliae vivente patre suo desponsavit Emmam sororem Magistri Godofredi de Toftes Rys, quondam Re­ctoris [...]de Hunstanston, de quibus exivit una filia ut patet inferius, & praedicta Emma obiit III. Cal. Oct. & sepulta est in Coemeterio Ecclesiae de Sharnburn, ex parte Australi Capellae prope parietem. Et post mortem praedictae Emmae idem Andreas desponsavit Christianam filiam domini Alani le Gross de Wode­norton de quibus exivit unus filius, & duae filiae, ut patet inferius. Et prae­dictus Andreas obiit VII. Kal. Julii, An. Dom. millesimo CC. LXXXII. Regni Regis Edwardi filii Regis Henrici X. Et sepultus fuit in Capella Ecclesiae de Sharnburn, ad caput domini Andreae sub pariete Australi. Et praedicta Christiana post mortem praedicti Andreae desponsata fuit Edmundo filio domini Johannis de Gylham de Dersyngham, & vixit per longum tempus post mortem praedicti Edmundi; videlicet usque festum Sancti Lucae Evangelistae, An. Dom. mille­simo CCC. XXXVI. & Regni Regis Edwardi tertii post conquestum decimo. [...] Walterus tertius filius praedictorum Petri & Ceciliae fuit Armiger, cum domino Thoma Rostelyn seniori nobili homine & probo tota vita ipsius domini Thomae, & cum ipso fuit ad bellum de Lewes & Evesham ex parte Regis Henrici, & Edwardi filii sui, & postea idem Walterus fuit cum praedicto domino Thoma in terra Sancta de Jerusalem, in ultimis annis praedicti Henrici Regis in so­cietate 34 praedicti Edwardi. Et idem Walterus post reditum suum de terra Sancta procreavit de Juliana filia Adae Rydout senioris unum filium, & tres filias Bastardas, ut patet inferius, & postea per longum tempus ipse per cohor­tationem Ecclesiasticam desponsavit praedictum Julianam, contra voluntatem suam, quia ipse Walterus amabat filiam praedicti domini Thomae, quae despon­sata fuit domino Roberto Turtevill, & post mortem ejusdem domini Roberti ipsa debuit desponsari praedicto Waltero, sed perturbata fuit per praedictam Julia­nam, & post mortem ejusdem Julianae ipse vixit solus sine muliere usque in ultimis diebus vitae suae. Et quando Edwardus Rex primus post Conquesto­rem [Page 195] cepit crucem eundo in terram Sanctam, ipse Walterus cepit crucem, & signatus fuit in carne super humerum dextrum, sed non fecit peregrinationem dictam in vita sua, quia Rex non fecit. Et postea in ultimo anno vitae suae 35 desponsavit Margeriam filiam Stephani de Geyton, & ex ea procreavit unum filium, ut patet inferius. Et eadem Margeria supervixit praedictum Walte­rum▪ per longum tempus, & praedictus Walterus obiit pridie Cal. Octobris, Anno Dom. millesimo CCC. VII. & Regni Regis Edwardi filii Regis Edwardi primo, & sepultus est extra Capellam de Sharnburn, ad caput orientale. Et