detruncatione vel alijs modis juxtâ— quantitatem delicti puniat To be an Hangman or Executioner of such as were condemned to suffer death or any loss of Members according to the nature of their offences could neither be parted with or taken to be any thing but a benefit And that a claim was made by one thâ—â— held Lands in the Isle of Silly to be the Exeâ—cutioner of Felons which there was then usualy done by letting every one of them down in a Basket from a steâ—p Rock with the provision only of two Loaves of Barly bread and a pot of water to expect as they hung the mercy of the Sea when the Tide should bring it in And that those which held by the easy and no dishonourable Tenures of being Tenants in Capite and Knightâ—service should as Mr. Robert Hill a learned and judicious Antiquary in the beginning of the Reign of King James well observeth rack and lease their Lands to their under Tenants at the highest Rents and Râ—tes and neither they nor their Tenants call that a slavery which though none at all may seem to be a far greater burden than any Tenâ—nt in Capite and by Knight service which holdeth of the King or any Tenant that holdeth by knight service of a mesne Lord endureth when as the one is always more like to have the bag and burden which he must pay for laid upon him in his Bargain then the other who is only to welcom a gift or favour for which he payeth but a grateful acknowledgment Nor is there in that which is now so much complained of and supposed to be a Grievance which whatever it be except that which may as to some particular cases happen to the best and most refined Constitutions and the management thereof hath only been by the fault of some people who to be unfaithful and deceive the King in his Wardships or other Duties have some times cast themselves into the trouble and extremityes which were justly put upon them for concealments of Wardships or making fraudulent conveyances to defeat the just Rights of the King or their superiour Lords or by some exorbitances or multiplications of Fees since the erecting of the Court of Wards and Liveries by an Act of Parliament in 32 H. 8. any malum in se original innate or intrinsecal cause of evil or inconvenience in them Active or Prâ—xime meerly arising from the Nature or Constitution of Tenures in Capite and Knight Service To be found upon the most severe examinations and inquiries which may be made of them nor are they so large in their number as to extend or spread themselves into an universality of grievances nor were or are any publick or extraordinary Grievance CHAP. III. Tenures of Lands in Capite and by Knight service are not so many in number as is supposed nor were or are any publick or general grievance FOr the Number of Knights Fees which were holden in Capite and by Knight service of the King have by tract of time Alienations Purprestures Assarts incroachments deafforrestations and concealments been exceedingly lessened and decreased 28015 which were said to be parcel of the 60215 knights Fees created by William the Conquerour being granted afterwards by him or his successors to Monasteries Abbyes Priories and religious houses or parcelled into Glebes or other endowments belonging to Cathedrals Churches and Chantries or given away in Mortmain and very many quillets and parcels of Land after the dissolution of the Abbyes and religious houses not exceeding the yearly value of forty shillings And now far exceeding that value granted in Socage by King Henry the eighth besides many other great quantities of dissolved Abbyes and religious Lands granted to be holden in Socage Much of the Abbye Lands retained in the Crown or Kings hands as part of the Royal Patrimony and many Mannors and great quantities of Land granted to divers of the Nobility gentry and others with reservations many times of Tenures of but half a knights Fee when that which was granted would after the old rate or proportion of knights Fees have been three or four knights Fees or more and somtimes as much or more then that no rule at all as touching the proportions of Lands or Tenures being then in such an abundance of Land and Revenue as by the dissolution of the Abbyeâ— came into the Kings hands or disposing 〈◊〉 all kept which might have made many knights Fees were not seldom granted with a Tenure only of a twentieth or fortieth and sometimes an hundreth part of a knights Fee whereby the knights Fees which were granted to the Religious houses being almost half of the number which William the Conquerour is said at the first to have created might well decrease into a smaller number and many of those which diverse of the Nobility and great men held of the King as those of Ferrers Earl of Darby and the Earls of Chester those that came by marriage as by one of the Daughters and Heirs of 〈◊〉 Earl of Hereford and Essex by escheat as the Earldome of Clare or by Resumptions Dissolution of Priors Alienâ— Knights of St. John of Hierusalem Attainders Escheats or Forfeitures which in the Barons Wars were very many or holden as of honors c. Merging and devolving into the Royal Revenue did take of very many of the number especially since the making of the Act of Parliament in 1 â— 6. cap. 4. that there should be no Tenure in Capite of the King by reason of Lands coming to the hands of him or any of his Progenitors Heirs or Successors by Attainders of Treason misprision of Treason Premunires dissolution or surrender of Religious Houses And not a few of the Mesne Lords and those which held also of the King did make as great an abatement in their Tenures by releasing and discharging their services before the making of the Statute of Quia emptores terrarum granting Lands in Socage Franck Almoigne or by copy of Court Roll and casting out a great part of their Lands as well as the Kings of England did not Forrests Chases many vast Commons which they laid out in Charity for the good of the poorer sort of people infranchising of a great number of Copyholders selling giving away many and great parcels of their demesne Lands disparking of many of their Parks deviding them into many Tenements to be holden in Socage endowing of Churches Chantries religious houses the like the forrests Chases and Commons of the Kingdom making very near a tenth part in ten of the Lands of the Kingdom and the Socage Lands Burgage Franck Almoigne and Copyholds more than two parts in three of all the remainder of the Lands of the Kingdom So as it is not therefore improbable but that there are now not above ten thousand or at most a fourth part of those 62015. Knights Fees to be found And that in antient and former times either by reason that great quantities of Mannors and
Tenenda non Tollenda OR The Necessity of Preserving TENURES IN CAPITE and by KNIGHT-SERVICE VVhich according to their first Institution were and are yet a great part of the Salus Populi and the Safety and Defence of the King as well as of his People TOGETHER With a Prospect of the very many Mischiefs and Inconveniences which by the taking away or altering of those Tenures will inevitably happen to the KING and his KINGDOMES By Fabian Philipps Esq Claudian Lib. 2. Ne pereat tam priscus Honos qui portus honorum Semper erat nullo Sarciri Consule Damnum LONDON Printed by Thomas Leach for the Author and are to be sold by Abel Roper at the Sign of the Sun in Fleetstreet 1660. To the Right Honourable Sir Edward Hide Knight Baron of Hindon and Lord Chancellor of England My Lord EVery man who hath not been out of his Wits or his own Country or like the Poet Epimenides who is said to have slept more than Twenty years And hath but understood or experimented the many Miseryes and Confusions which our new Reformers and Modellers of Government who like unskilful Architects cannot amend a part of an house without overturning the whole Fabrick upon the heads of the Owners have treated the Faction and Ignorance of too many of the seduced people of this Kingdom withal And sitting by the Waters of Babylon had not forgot Jerusalem or but remembred the happinesse of the Condition we before enjoyed under a gratious and pious Prince in an Antient and for many ages past most happy Monarchy and with Tears of Joy welcommed it again in the Return of his sacred Majesty and all our peace and plenty from a sad and long oppressing Captivity must needs think himself obliged not only to pray for the Peace of our Syon but to endeavour all he can to uphold the Kings Rights and Jurisdictions Who being our Lex viva and guarding Himself us and our Laws is with them the sure support of us and all that is or can be of any Concernment to us and our Posterityes And therefore when we are taught by our Laws and the sage Interpreters and Expounders thereof That every Subject hath an Interest in the King as the Head of the Weâ—le Publick and as the inferior Members cannot estrange them selves from the Actions or Passions of the head no lesse can any Subject make himself a Stranger to any thing which toucheth the King or their supreme Head And that not a few but very many knowing and able men are of opinion not ushered in by Fancy or first Notions but well weighed and built with Reason and good Authorities that the exchanging of the Tenures in Capite and by Knight Service for a constant yearly payment of 100000 l. will level the Regality and turn the Soveraignty into a dangerous popularity and take away or blunt the Edge of the Sword by which his Majesty is to defend his people I could not but conceive it to be my Duty and a failer of my Duty and Oaths of Allegiance and Supremacy not to do it to offer to consideration the antiquity and right use of Tenures in this and other Kingdoms that they are no Slavery nor Grievance how from a project in the beginning of the Raign of King James it came to trouble several Parliaments the small benefits will come to the Subjects by altering those Tenures and the many Inconveniences and Mischiefs which will inevitably follow and that it is such a flower of the Crown as the power of an Act of Parliament and consent of the King and his Nobility and people cannot take away wherein though I may well say it is a matter as Livy said of his undertaking to write the Roman History Immensi Operis and that the disquisition of it requiring greater Abilities than I can lay any claim unto and the excellent Order heretofore used that all Books of the Law or very much concerning it should be perused and allowed by the Reverend Judges of the Law before they should be Printed and published might have been enough to have made me either to desist or have attended their approbation Yet when the good intentions of many Parliament men of the House of Commons to make the King a constant Revenue were so busy to prepare an Act of Parliament to dissolve those more useful and honourable Tenures into a Socage which will never arrive to the Salus Populi they aim at I have like some well-wishing Roman to his Countries good in my Cares and fear least any thing should hurt dislocate or disturb that well ordered and constituted Government under which our Progenitors enjoyed so much Honor Peace und Plenty hasted Currente Calamo to a modest inquiry into the grounds and motives for the dissolution of them and the Court of Wards and an examination of that to be prepared Act in the General for as to the Preamble Clâ—uses or Provisoes they are not permitted to be seen before the Act passeth the Rogatio Legum as it was amongst the Romans being not here in use in some cases as it may be wished it were and when none else would publiquely endeavour to rescue them have without any Byasse or partiality as well as I could represented what hath been the right use of them and what may be the Inconveniences if they should be changed or altered and that they are not guilty of the charge which is supposed but never will be proved against them And confesse that it deserved a better Advocate than my self who having attempted to do it horis Succâ—sâ—vis interturbationes rerum am Conscious to my self that much more might have been said for it and that the matter was capable of a better form and might have appeared in a better dresse if my care to do something as fast as I could had not for want of time hindred me from doing what I might But I hope that your Lordship who hath trod the Pathes of Affliction and in the attendance and care of a persecuted Monarchy and an Afflicted most Gracious Prince who hath born the burthen of His own Sorrows Troubles as well as of a Loyal party that Suffered wiâ—h for Him and His Royal Father have in Your Travails and residence in many Kingdoms and parts beyond the Seas viewed and seen the Fundamentals and Order of other Kingdoms the Policies and good Reiglements of some and the Errors and Infirmities of others will with your learned Predecessor the Chancellor Fortescue in the Raign of King Henry the 6â—h the more admire and love the Laws and excellent Constitutions of England which as a Quintessence of right reason may seem to have been Limbecked and drawn out of the best of Laws and choice of all which might be learned out of other Nations or the Records or Treasury of Time and find reason enough to be of the opinion of that well knowing Statesman that non minime erit regno accommodum ut Incolae
shillings for a whole Knights Fee and after that rate proportionably ibm 35. If the Guardian maketh a Feoffement of the Wards Lands he shall have a Writ of Novel disseisin and upon recovery the Seisin shall be delivered to the next friend and the Guardian shall loose the Wardship 3. E. 1. ca. 47. Usurpation of a Church during the minority of the Heir shall not prejudice him 13 E. 1.5 Admeasurement of Dower shall be granted to a Guardian and the Heir shall not be barred by the suite of the Guardian if there be collusion 13 E. 1.7 Next Friends shall be permitted to sue if the Heir be â—loyned 13 E. 1.15 If part of the Lands be sold the services shall be apportioned Westmr. 3.2 Escheators shall commit no waste in Wards Lands 28 E. 1 18. If Lands without cause be seised by the Escheator the Issues and Mesne profits shall be restored 21 E. 1.19 where it is found by Inquest that Lands are not holden of the King the Escheator shall without delay return the possession Stat de Escheatoribus 29 E. 1. Escheators shall have sufficient in the places where they Minister to answer the King and his People if any shall complain 4 E 3.9.5 E. 3 4. Shall be chosen by the Chancelour Treasurer and chief Baron taking unto them the chief Justices of the one bench and the other if they be present and no Escheator shall tarry in his office above a year 14 E. 3.8 A Ward shall have an action of waste against his Guardian and Escheators shall make no waste in the Lands of the Kings wards 14 E. 3 13. Aid to make the Kings Son a Knight or to marry his Daughter shall be in no other manner then according to the Statute thereof formerly made 25 E. 3 11. Traverses of offices found before Escheators upon dyings seised or alienations without licence shall be tried in the Kings Bench 34 E. 3 14. An Escheator shall have no Pec of wood fish or venison out of the wards Lands 38 E. 3 13. An Idempnitate nominis shall be granted of another mans Lands seised by an Escheator 37 E 1.2 No Escheator shall be made unless he haue twenty pounds Land per annum or more in Fee and they shall execute their offices in proper person the Chancellor shall make Escheators without any Gift or Brokage and shall make them of the most lawful men and sufficient 12 R. 2.2 An Escheator or Commissioner shall take no Inquest but by such persons as shall be retorned by the Sheriff they shall retorn the offices found before them and the Lands shall be let to farm to him that tendereth a Traverse to the office 8 H. 6.16 Inquisitions shall be taken by Escheators in good Towns and open places and they shall not take above forty Shillings for finding an office under the penalty of forty pounds 23 H. 6 17. Women at the age of fourteen years at the time of the death of their Ancestors without question or difficulty shall have Livery of their Lands 39 H. 6.2 No office shall be retorned into any of the Kings Courts by any Escheator or Commissioner but which is found by a Jury and none to be an Escheator who hath not forty markes per annum above all reprises the Jurors to have Land of the yearly value of forty shillings within the Shire the Forman of the Jury shall keep the Counter part of the Inquisition and the Escheator must receive the Inquisition found by the Iury as also the offices or Inquisitions shall be received in the Chancery and Exchequer 1 H. 8 ca. 8. Lands shall be lâ—t to farme to him that offereth to traverse the office before the offices or Inquests retorned or within three Months after 1 H. 8 ca. 10. the respite of Homage of Lands not exceeding five pounds per Annum to be but eight pence the yearly value of Lands not exceeding twenty pounds per annum to be taken as it is found in the Inquisition except it by examination otherwise appear to the Master of the Wards Surveyer Atturney or Receiver General or three of them or that it shall otherwise appear and be declared in any of the Kings Courts No Escheator shall sit virtute officii where the Lands be five pounds per annum or above the Escheator shall take for finding of an office not exceeding five pounds per annum but six Shillings eight pence for his Fee and for the writing of the office three Shillings four pence for the charges of the Jury three Shillings and for the officers and Ministers of any Court that shall receive the same Record two shillings upon pain of five pounds to the Escheator for every time so offending the Master and Court shall have power to moderate any Fines or Recognisances 33 H 8.22 The Heir of Lands not exceeding five pounds per annum may sue his General Livery by warrant only out of the Court of wards although there be no Inquisition or office found or certified The Interest of every lesser Tenant for Term of years Copy-holder or other person having interest in any Lands found in any office or Inquisition shall be saved though they be not found by office The Heir upon an aetate probanda shall have an oustâ—e le maines and the profits of his Lands from the time that he comes to age and if any office be untruely found a Traverse shall be allowed or a Monstrans de Droit without being driven to any petition of right though the King be entitled by a double matter of Record A Traverse to an office shall be allowed where a wrong Tenure is found an ignoramus â—ound of a Tenure shall not be taken to be any Tenure in Capite and upon a Traverse a Scire facias shall be awarded against the Kings Patentee 2 and 3 E 6. ca. 8. And if there had been any certain or common grievances or so much as a likelyhood of any to have risen or happened by such Tenures and benefits which many were the better for and had no reason at all to find fault with w ch many more were striving to deserve of the Kings of England the Nobility great men of this Kingdom the Parliaments that have been ever since the 8 th year of the reign of H. 3. would not have made so many Acts of Parliament for their establishment or tending to their preservation if we should believe as it cannot be well denyed that Parliaments have been sometimes mistaken and enacted that which they have afterwards thought fit to repeal Yet it comes not within the virge or compass of any probability that Parliaments where all grievances are most commonly represented should for almost four hundred years together in a succession of many Kings Parliaments enact or continue grievances instead of remedies neither find those Tenures to be inconvenient or not fit to be continued or so much as complain of them but as if they were blessings of a
part of the well being of the Nation not at once but at several times in several ages and several Generations support and uphold them by after Laws constitutions as That no Freeman should from thence give nor sell any more of his lands but so that of the residue of the lands the Lord of the fee may have the services due unto him which belongeth to the Fee Lands aliened in mortmaine shall accrew to the Lord of the Fee 9 H. 3. ca. 32. 36. the Ward shall pay to the Lord of the Fee the value of his marriage if he will not marry at the request of his Lord for the marriage of him that is within age say the Statute the makers thereof of meer right pertaineth to the Lord of the Fee 20. H. 3 cap. 7. The Lord shall not pay a Fine for distraining his Tenant for Services and â—ustomes 52. H. 3 cap. 3. A fraudulent conveyance to defeat the Lord of his ward shall be void cap. 6. The King shall have primer seisin neither the heir nor any other shall intrude into their Inheritance before he hath received it out of the Kings hands as the same Inheritance was wont to be taken out of his hands and his Ancestors in times past if the lands be accustomed to be in the Kings hands by Knight service or Serjeanty or right of Patronage 52. H. 3. cap. 16. If an heir marry within age without the consent of his Guardian before he be past the age of fourteen years it shall be done according as is contained in the statute of Merton and of them that marry after that age without the consent of their Guardian the Guardian shall have the double value of their marriage such as have withdrawn their marriage shall pay the full value to the Guardian for the trespass and nevertheless the King shall have like amends And if the wards of malice or by evil council will not be married by their chief Lords where they shall not be disparaged then the Lords may hold their lands and Inheritance until they have accomplished the age of an heir male that is to wit of twenty one years and further until they have taken the value of the marriage 3 E. 1.22 A Tenaent shall have a writ of mesne to acquit him of his services and if the mesne come not he shall loose the service of his Tenant 13 E. 1.9 Priority of Feoffment shall make a title for wardship cap. 16. the chief Lord shall have a Cessavit against the Tenant if he cease for two years to do his service writs of Ravishment degard allowed to the Lord and the Party offending though he restore the ward unmarried or pay for the marriage shall nevertheless be punished by two years Imprisonment 13 E. 1.35 The Feoffee shall hold his lands of the chief Lord and not of the Feoffor 18 E. 1. Quia emptores terrarum A saving to the King of the antient aydes due and accustomed 25. E. 1.6 The King shall have the wardship of his Tenant which holdeth in chief the marriage of the heir primer seisin assignement of dower to the widdow marriage of the women Tenants deviding their lands in Coparcinery holden of him and they which hold of him in Serjeanty shall pay a Fine at the Alienation 17. E. 2. A Free-man shall doe his homage to his Lord 17. E. 2. Knights Fees shall not pass in the Kings grants without special words 17 E. 2.16 he shall be answered the mesne rates of Lands coming to him by his Tenants death 28. E. 3.4 where sundry of the Kings Tenants holding of him immediately as of his Dutchy of Lancaster did by sundry Recoveries Fines and Feoffments in use defeat the King of Wardships of Body and Lands It was Enacted that the King and his Heirs shall have the Wardship and Custody of the Body and Lands of cestui que use and if they be of full age shall have relief notwithstanding any such conveyance and an exact provision made for Writs to be granted upon the imbesiling of any such Heir Rot. Parl. 22 E. 4. N. 16. 17. The Lord of Cestui que use no will being declared c. shall have a Writ of Right of Ward for the Body and Land and the Heir of Cestuique use being of full Age at the Death of his Auncestor shall pay a relief 4 H. 7.17 Avâ—wry may be made by the Lord upon the land holden of him without naming his Tenant 21 H. 8.19 And no grievance was thought be in them at the time of the making of the Act of Parliament of 27 H. 8 2. when as it was expresly provided by that Act that Tenures in Capite should be reserved to the King of all mannors lands and hereditaments belonging to Monasteries religious houses which had lands Tenements and hereditaments not exceeding the clear yearly value of two hundred pounds which he should afterwards grant for an estate of Inheritance nor did the Parliament in the 31 year of the raign of that King retract that good opinion which was formerly had of them when enacting that the King and his heirs and Successors should be put in actual possession of all mannors lands and hereditaments of any yearly value whatsoever belonging to Monasteries they saved to the King his heirs and Successors all rents services and other duties as if that act had never been made Nor in the Act of Parliament of 32 H. 8. cap. 46. For erection of the Court of wards and Liveries wherin it is acknowledged that Tenures in Capite and wardships with their incidents did of right belong to the King in the right of the Imperial Crown of this Realm In the Act of Parliament of 32. H. 8. And an explanation thereof in 34 and 35 H. 8.5 giving power to those that held lands in Capite and by Knights service to devise two parts thereof reserving to the King wardship primer seisin and Fines for alienation of the third part and Fines for alienations of the Freehold or Inheritance of the two parts The Crown being secured of the Tenure of the two parts by the statute of Quia emptores terrarum Nor at the making of the statutes of 35 H. 8.14 37 H. 8.2 Whereby the King might reserve Tenures in Socage or Capite at his will and pleasure upon grants of lands not exceeding the value of forty shillings per annum belonging to religious houses And that the Kings former right shall be saved notwithstanding any Traverse a remedy for the rents of the mesne Lords where the King hath the wardships 2 and 3 E. 6. cap. 8 And those that held by such Tenures besides the care of so many Acts of Parliament were not unhappy also in that provision of the Common Law where it was an Article or inquiry in the Eyre if any Lord novas levavit consuetudines had charged his Tenant with any new Customes if any Escheators or Subescheators had made any
themselves for their Allegiance to their King following of the Scripture their Consciences and the known Laws of the Land were notwithstanding their many Petitions and Importunities several years whilst their estates were Sequestred and taken from them kept in a starving Condition before they could be heard to litle purpose where Sons and too well descended to be so unworthy were invited to accuse their Loyal Aged Parents whom the Jewes would have rent their Clothes to have seen encouraged and made to be sharers in the spoyl of their Father Not like the Committee or Court improperly called at Salters-Hall for relief of Creditors against their imprisoned Debtors where some of those Judges and Committees if not wronged by printed Complaints were in good hopes to have made some preparations to sell the Debtors Lands to their Friends or Kindred at good Penniworths Nor like the Committee for Plundring rather than Plundred Ministers who to take away all the Benefices of England and Wales from the Tribe of Levi and confer them upon the Tribe of Issachar and their Factious and Mechanique guifted Brethren and keep out the Orthodox and learned Clergy could make their costly orders for the trial of them that were more Learned then themselves concerning the Grace of God and their utterance for Preaching of the Gospel with private and deceitful marks and litle close couched or interposed Letters hid or put under or over some other Letters whereby to intimate to their Subcommittees in the Countries that howsoever the men were without exception and found to be so upon Certificates and Examination they were to be delayed and sent from Post to Pillar and tired boâ—h in their Bodies and Purses and be sure never to be instituted and inducted But was a Court compos'd of grave learned knowing and worthy Masters of the Wards such as William Marquesse of Winchester William Lord Burghley and his Son the Earl of Salisbury and many other who made not the Court or any of the businesse thereof to Lacquy after their own Interest Had for Attorney Generalls of that Court who sate as men of Law and Judges therein and assistants to the Masters of the Wards Richard Onslow Esq afterwards Speaker of the House of Commons Sr. Nicholas Bacon Knight afterwards a most learned Lord keeper of the great Seal of England and a great Councellor of Estate to Queen Elizabeth Sr. Henry Hobart afterwards Lord cheif Justice of the Court of Common-pleas Sr. James Ley Knight and Baronet afterwards Lord cheif Justice of the Court of Kings Bench after that Earl of Marleborough and Lord Treasurer of England Sr. Henry Calthrop Knight Sr. Rowland Wandesford Knight and Sr. Orlando Bridgeman Kt. now Lord Chief Justice of the Court of Common pleas all very eminently learned Lawyers and of great estates honour honesty and worth in their several generations who upon any difficult or weighty matter of Law to be discussed in that Court did usually intreat the presence and had the assistance of the Lord cheif Justices Lord cheif Baron or of any of the other learned Judges of the Land whom they should please to invite unto them where a variety of learning grave deliberations a great care of Justice and right reason most lively and clearly represented have left to posterity as guides and directions for after ages those conclusions and resolutions of cases of great learning and weight in that Court reported by the Lord Dier Cook and other learned Sages of the Law Nor were the Masters of the Wards Attorneys Auditors or Escheators loosely tied by Oaths as some of the Committee Jurisdictions were when they did swear only in general faithfully according to their best skill and knowledge to discharge the trust committed to them and would not for favour or affection reward or gift or hopes of reward or gift break the same Or as little restraining them from Acts of Oppression or Injustice as the Oath of the Controlers for the sale of the Kings and Queens lands ordered by that which called it self a Parliament 17. July 1649. The Oath of the Commissioners for managing the estates of Delinquents Sequestrations at Haberdashers-Hall Ordered by no better an Authority the 15 of April 1650. or that which by that which would be called an Act of Parliament of the 10 of December 1650. for establishing an high Court of Justice within the Counties of Norfforlk Suffolk Cambridge and Huntington for the Tryal of Delinquents was only ordered was to be taken by those that were to be the Judges that they should well and truly according to the best of their skill and knowledge execute the several powers given unto them Which bound them not from doing wrong to those whom they made to bear the burdens of all the cruelties which they could possibly lay upon them But were compassed and hedged in by Oaths as warily restraining as they were legal for the Master of the Wards was by Act of Parliament enjoyned to swear to minister Justice to Rich ond Poor to the best of his cunning and power to take no gift or reward in any Case depending before him and to deliver with speed such as shall have to do before him The Attorney was sworn truely to counsel the King and the Master of the Court and with all speed and diligence to endeavour the hearing and determination indifferently of such matters and causes as shall depend before the Master of the Wards and shall not take any gift or reward in any matter or cause depending in the same Court The Auditors sworn to make a true allowance in their Offices to every person which shall be accomptant before them and not to take or recieve of Poor or Rich any gift or reward in any matter or cause depending or to be discussed in the Court but such as shall be ordinarily appertaining to their Offices and the Escheators to treat all the people in their â—ayliwicks truely and righteously to do right to every man aswell to poor as to rich do no wrong to any man neither for promise love nor hate nor no mans right disturb do nothing whereby right may be disturbed letted or delayed and shall take their Enquests in open places and not privy And might better content the people Then when in former ages the Wardships and their disposing were left to the care and order of the Chancellour as to Thomas Bâ—cket in H. 2. time or to Hubert de Burgh Chief-Justice and Earl of Kent in the Reign of H. 3. sometimes to the Treasurers or Chamberlains most comonly let to farm by Escheators sometimes by under-Sherifs or when the next Wardships or Escheats that should happen were before hand assigned towards the payment of some of the Kings Debts as to William de Valence Earl of Pembroke in the Reign of E. 1. or that the Wardships and Escheats which should happen in 6 or 7. Counties were before hand granted to some particular man And can
vel quibuscunque illatis a multis retroactis temporibus et omnia inquisita sub sigillis suis inclusa secum coram Baronagio ad tempus sibi per breve praefixum Four Knights men of known worth and wisdom loving and beloved of their Countryes to enquire what grievances or oppressions the smaller sort of people suffered by the greater and also of all injuries and â—â—ongs done by any person whatsoever either lately or formerly and to certifie it under their Seals to the Barronage which what ever they were or if ever or never recorded for they have not for ought appears been certified or recorded no Record or Historian of that or the after times have said that Tenures in Capite and by Knights service were thereupon retorned to be oppressive or so much as inconvenient Neither are to be found amongst any of those huge heaps of evils which Mathew Paris that sower and honest Monk of St. Albons who lived in those times and especially remarked them hath delivered to posterity The 24 Reformers or Conservators of the Kingdom in that Kings Reign appointed by the Baronage never intimated any thing of their dislike of that honourable institution It was not complained of upon the refusal of Roger Bigod Earl of Norfolk Marshall of England Humphry Bohun Earl of Hereford and Essex Constable of England and Gilbert de Clare Earl of Glocester and Hertford great and mighty men and of Princely Estates to go at the Command of King E. 1. unto his Wars at Gascony upon pretence that the warning was to short whereby the Kings displeasure was so much incurred aâ— Bohun and Clare to escape the Seisure and forfeiture of their Lands and to purchase his favour again were glad each of them to marry one of his Daughters without any Dowry and surrender their Earldoms Honors Offices and Lands unto him take back Estates thereof in Tayle to them and the Heirs of their Bodies upon their wives to be severally begotten and Bigot surrendring also to him his Earledom and Marshals rod together with all his Lands and taking Back a grant of an Estate for life in his honors and Lands the reversion to the King if he should not have any Issue of his Body begotten the King in Parliament pardoned them and John de Ferrariâ—s and other Earls Barons Knights and Esquires and all other of their fellowship confederacy and Bond and all that held twenty pounds Land Per annum whether in chief of the King or other that were appointed at a certain day to pass over with him into Flanders their rancour and evil will and all other offences committed against him Were not in the Roll of general grievances which the Arch-Bishops Bishops Eaâ—ls Barons and Commons sent him when he was at the Sea side ready to take shipping into Gascoigne concerning his Taxes and other impositions Neither any vestigia or footsteps to be found of any grievance by them in that grand search or inquiry by the Commissions of Traile Baston in or about the 33 of E. 3. after intruders into other mens Lands exactions and oppressions or in the presentments in the Eyres when the Justices thereof in several Kings reigns carefully travailed into the several Counties and places of England and found out and returned the complaints and oppressions of every County and where the Natives themselves the witnesses cannot be supposed to be so much their own enemies as to conceal the Countries oppressions the Jurors were solemnly charged to present them upon their Oaths and if they should omit to do it had the malice of their Neighbours to watch accuse their Perjuries and the severity of the Judges to punish any failings in their duty Or in the Reformation which the Lords Ordainers as they were afterwards called in or about the fifth year of the Raign of King E. 2. pretended to make in that unadvised Commission which he granted them for the Government of the Kingdome No pretence or so much as a murmur against them by the Reformers in Wat Tylers and Jack Straws commotion when they were so willing to overthrow and extirpate all the Nobility and Gentry which should withstand their rude and unruly designs of making all Bondmen free and taking away Villenage and of making Wat Tyler and several other of their party Kings in several Counties and to devise what Laws they listed Or by Jack Cade or Captain Mend-all as he falsely stiled himself when many a grievance was picked up to colour his Rebellion in the reign of King H. 6. but could find nothing of that for a garnish of his Roguery Or Robert Ket the Tanner in the reign of King E. 6. sitting in judgment amongst the Rabble under his tree as they called it of Reformation where Tenures and Wardships being so obvious and every where insisted upon they would not probably have omitted them out of the Roll or list of their complaints if there could have been but a supposition or dream of any grievance in them which being the more noble beneficial and better sort of Tenures may better deserve an approbation of the People and Parliaments of England than Tenures in Villenage which by an Act of Parliament in 25 E. 3.18 may be pleaded and a Villain seized though a libertate probaâ—dâ— be depending And it was enacted in the Parliament of 9 R. 2.2 that if Villaines fled into places infranchised and sued their Lords their Lords should not be barred thereby and by an Act Parliament in 8 H. 6.11 that a Villain should not be admitted or put to be an Apprentice in the City of London and by an Act of Parliament in 19. H. 7.15 If any Bond-man purchase Lands and convey away the Lands the Bond-man being â—estui que use of thâ—se Lands they shall be seised by the Lord. Nor did the Act of Parliament of 25 E. 3. which provided that none should be constrained to find men of Armes Hâ—blers nor Archers but by common assent and grant made in Parliament mistake when it inserted a saving and exception of all those that held by such services Neither did the Commons in the Parliament of 5 R. 2. upon the Repeal in Parliament of the Manumissions of Bond-men extorted from the King by Wat Tyler and his Rout or men of Reformation think they did themselves or those they represented any hurt when they cryed with one voyce that the Repeal was good and that at their request the Repeal was by whole assent confirmed Tenures in Capite and by Knights service were not complained of in the Parliament of 13 R. 2. though the Commons in Parliament had prayed and were allowed that euery man might complain of the oppression of what person or Estate soever without incurring the pain of the Statute of Gloucester which under great penalties prohibited false Newes and Lies of the Nobility and great men of the Realm Chancellor Treasurer Justices of both Benches and other great
Officers of the Bench made in the second year of the King Nor was there so much as an Apprehension of any evil in them in the Parliament of 4 H. 4. where the Commons pray that The Act of Parliament of the 1 of E. 3. that none shall be distrained to go out of their Counties but only for the Cause of necessity of suddain coming of strange Enemies into the Realm and the Statute made in the 18 th year of the Reign of the said King That men of Armes Hoblers and Archers chosen to go in the Kings Service out of England shall be at the Kings wages from the day that they do depart out of the Counties where they were chosen and also that the Statute made in the 25 th year of the Raign of the said King that none be compelled to find Men of Arms Hoblers nor Archers other than those which hold by such services unlesse it be by common assent and grant made in Parliament be firmly holden and kept in all points it was upon the granting of their desires and an Act of Parliament made for that purposâ— as the Declaration of the Lords and Commons in Parliament against the Kings Commission of Array in an 1642 mentioneth especially provided that by force or colour of the said supplication nor of any Statute thereupon to be made the Lords nor any other that have Lands or Possessions in the Counties of Wales or in the Marches thereof shall in no wise be excused of their Services and Devoires due of their said Lands and Possessions nor of any other Devoier or things whereunto they or any of them be especially bound to the King though that the same Lords and others have other Lands and Possessions within the Realm of England nor that the Lords or other of what Estate or Condition soever they be that hold by Esâ—uage or other Services due to the King any Lands and Possessions within the said Realm be no way excused to do their Services and Devoirs due of the said Lands and Possessions nor that the Lords Knights Esquires nor other Persons of what Estate or Condition they be which hold and have of the Grant or Confirmation of the King Lands Possessions Fees Annuities Pensions or other yearly profits be not excused to do their Services to the King in such manner as they are bound because of the Lands Possessions Fees Annuities Pensions or Profits afâ—resaid And might challenge their quietus est or Proclamation of acquittall when there were no complaints made against them in the former ages when there were so many Taxes laid upon Knights Fees as 20 shillings then a great sum of money as much almost as 20 markes is now upon every Knights Fee imposed by King R. 1. toward his ransome 26 s. 8 d. upon every Knights Fee by King Iohn and another also of the same sum towards his expedition into Wales 20 s. upon every Knights Fee towards his Charges in Normandy an Escuage of 20 s. upon every Knights Fee to be paid the one half at Easter and the other at Michaelmas besides the Escuage which he had upon the marriage of his Sister Isabel to the Emperor Frederick two Escuages imposed by H. 3. and an Escuage upon the marriage of his Daughter the Lady Margaret to Alexander King of Scots 20 s. of every Knights Fee by H. 4. the many services in person done by those which held in capite and Knights Service in forinseco servitio in all the expeditions and Wars in France from the time of the Norman Conquest to the end of the Raign of E. 4. and at home in the Wars betwixt England and Wales and betwixt England and the Scots where very many Inhabitants of the Counties of Cumberland Westmeâ—land and Northumberland that held by Cornage a kind of Knight Service to blow a horn upon the invasion or incursion of the Scots and to help to repell them and had their Lands sometimes at the Will of the Lords conferred and given to the younger and more lusty Sons who were able to undergo that service could before King James his accession to the Crown of England the pacification of the English and Scottish hostilities placing them under one obedience scarce rest in their beds by reason of the Scots sudain or nightly alarmes and depredations driving or stealing their Cattell and spoiling all that they had And in all the troubles of England before and since the Barons Wars upon any Rebellions and inquietudes of the people when those that held by Knight service were frequently and hastily summoned to come to the King cum Equis Armis and the great charges trouble hazard and expences which the Lords Mâ—sne were put unto by Assessements of Escuage and otherwise And that immediately upon the death of the Kings Tenants in capite by Knight Service the Escheators did usually seise not only the Lands of the greatest of the Nobility Gentry and meaner men But the Stock and Cattell upon their grounds and the Goods in their Houses insomuch as their Executors were many times constrained to Petition and obtain the Kings Writs and Allowance to have the Stock and personal Estate delivered unto them And yet no complaints made at all against those Tenures or necessary defences of the Kingdome nor against Tenures by grand or Petit Serjeanty in the thirty confirmations of our Magna Charta upon as often Breaches to be supposed of it Never complained off in the making of thirty six Acts of Parliament concerning Wardships and Tenures in the several times and Ages from 8 H. 3. to this present nor at the making of the Act of Parliament in 32 H. 8. for the erection of the Court of Wards Nor in so many thousand Petitions which have been in 186. several Parliaments for almost four hundred years last past or before 9 H. 3. or ever since this nation could remember any thing either in our Parliaments Micel-gemots Wittena-gemots conventus sapientum or Magna Concilia where all the Grievances and Complaints of the people not to be remedied else where came as to the Pool of Bethesda for help and relief and wherein if any in some one or more Parliaments should so much neglect their duty and the more than ordinary business and concernments of their Kings themselves and Countries with which they were intrusted and to which their Oaths of Allegiance if nothing else must needs be their Monitors it cannot without a supposition and belief which will never be able to find entertainment in any rational mans understanding be imagined that the whole Nation for so many Ages past and in so many Assemblies of those that should be the Sons of Wisdome should be bound up under such a fate of Stupidity or Ignorance as to represent those that were sick and not know of it or that all or any of them should propter imbecillitatem vel pernegligentiam by a to be pitied weakness or negligence not either seek or
find the way to the ears or audience of so many worthy and just Kings and Princes as this Kingdom hath been happy in who would have been as willing to give a remedy as they could have been to seek it if there had been any ground or cause for it that so many Petitions of small concernments or of no greater consequence than for the paving of Streets killing of Crows not taking of young Herns out of their nests without license of the owner of the ground and the like should get admittance and cause Acts of Parliament to be made thereupon and that of Tenures in Capite if any grievance could at all be found in them and of so long a continuance which usually makes light burthens to be heavy should be so dipped in a Lethe or Oblivion as not at all to be remembred Which had nothing at all of grievance in their essence or being understood of them in the making of the Statute of 1 H. 8. against Empson and Dudley by whom the Kings Subjects had been sore hurt troubled and greived in causing untrue Offices to be found retorning of Offices that never were found and in changing Offices that were found No Grievance perceived to be in them in Primo Jacobi when in the Statute concerning Respites of Homage there was a Proviso that in case it shall be thought fit for the true knowledge and preservation of the Tenures appertaining to the Crown and so ordered in the open Court of Exchequer that proces should issue out of the said Court against any came not within the Suspition or Jealousy of a Grievance when in the Parliament of 7. Jacobi Regis Sr. Francis Bacon then his Majesties Sollicitor in his speech as one of the House of Commons in Parliament to the Lords in Parliament perswading them to joyn with the Commons to Petition the King to obtain liberty to treat of a Composition with his Majesty for Wards and Tenures acknowledged in the name of that Parliament that the Tree of Tenures was planted into the Prerogative by the Antient Common Law of England fenced in and preserved by many Statutes and yeildeth to the King the fruit of a great Revenue and that is was a noble Protection that the young Birds of the Nobility and good Families should be gathered and clucked under the Wings of the Crown Nor in Primo Car. primi in the Act of Parliament touching the rating of Officers Fees in the Exchequer upon pleadings of Licences or Pardons for Alienations when the Lords and Commons in that Parliament assembled did declare that the Kings Tenures are a Principal flower of the Crown which being in England the safety and protection of the people cannot be said or proved to be adorned by their sorrows and miseries and ought not to be concealed And that in the petition of Right in 3 Car. primi wherein all the Grievances and Burdens of the Subjects and breaches of Laws and Liberties that any way concerned them or their Posterities were enumerated and remedies for the future establishment of the quiet and happines of the people propounded and granted Tenures in Capite and Knight service with their incidents were not reckoned or accounted as Grievances though all that troubled the people were at that time so largly thought and beleived to be redrest as a publick joy upon the Kings granting of that Petition of Right was commanded to be celebrated by the Musique and ringing of Bells in every Parish Church of the Cities of London and Westminster which vied each with other who should proclaim and tell their joyes the loudest And the blaze of numberless Bonfires representing the flame of the peoples affection towards a most gracious Soveraign seemed to turn the sullen night into a morning or day which the Sun beams had newly guilded whilst Alecto and her Sister Furies despairing in their hopes of kindling a sedition and bringing the miseries of a Civil War upon us had thrown by their Torches and employed their Hellish griefs in the tearing of their Snakie loâ—ks Were no Sirtes or Rocks to shipwrack or hurt the people when Sr. Edward Coke who was so willing to have Tenures in Capite and Knight service to be changed into Tenures by Fealty only as of some of the Kings Honors and all their Incidents as Wardships primer seisin Licences of Alienation c. taken away and recompenced by a greater yearly profit then was then had or received by them and a rent to be inseperably annexed to the Crown with some necessary Covenants and Privisoes as he hoped that so good a motion as had been made in the Parliament of 18 Jacobi tending as he thought to the Honor and Profit of the King and his Crown for ever and the quiet and freedome of his Subjects and their Posterities would one way or other by the grace of God and Authority of Parliament take effect and be established could not but acknowledge between Anno 3. Car. Regis primi and the 12 th year of his raign that the Objection that Wardship was a Badge of servitude which would be a Grievance indeed and of the greatest Magnitude was groundless and without a Foundation for that the King by taking money for the marriage of the Ward doth it not as for a Ransome but taketh such moderate sums of money as in respect of the quality and state of the Ward He or She all circumstances considered is able to pay and in regard thereof hath the protection of the Court of Wards during Minority And giving Tenures by Knight service no worse a Character than the Wisdome of Antiquity for his Iustification therein citeth a place out of the Red Book in the Exchequer where it is said that mavult enim princeps domesticos quam Stipendiarios Bellicis apponere casibus the King had rather be served by his own Subjects than Hirelings or Stipendary Souldiers No Scylla or Charybdis taken to be in them in the Parl. of 17. Car. prim at the making of the Act for the better raising and levying of Souldiers for the present defence of the Kingdomes of England and Ireland wherein it being said that by the Laws of this Realm none of his Majesties Subjects ought to be impressed or compelled to goe out of his Country to serve as a Souldier in the Wars they excepted cases of necessity of the sodain coming in of strange enemies into the Kingdome or where they be otherwise bound by the Tenure of their Lands or Possessions In the Remonstrance of the House of Commons 15. December 1641. and that unhappy Amasse and collection of Complaints against the Government the Tenures themselves were not so much as complained of but the exceeding of the Jurisdiction of the Court of Wards that thereby the estates of many Families were weakned some ruined by excessive Fines for Composition for Wardships exacted from them which if in some few particulars where the Estate it self was weak or incumbred with
to the King at Oxford to be treated upon by the Earl of Northumberland William Pierrepont Esq Sr. Wil. Armin Bulstrode Whitlock Esq their Commissioners There was nothing desired or proposed for the taking away of the Court of Wards or changing of Tenures but did conclude that if that which then was desired of the King should be granted the Royalty greatnes of his Throne would be supported by the loyal and bountyfull affections of his people their Liberties and Priviledges maintained by his Majesties protection and Justice They were no part of the Bills or Acts of Parliament sent to the King at Oxford in order to a peace in July 1648. No part of the Demands or Bills or Acts of Parliament proposed by the Parliament in the Treaty at Vxbridge betwixt them and the King 23 Novemb. 1644. And there was so litle of grievance or inconvenience or none at all to be found in Tenures in Capite and by Knight service by reason of any accidents for naturally or originally there can be none at all proved to be in them As notwithstanding the Vote of the House of Commons in Parliament made the 20 th day of September 1645. Which being less then an Embrio and no more then an opinion of the Major part of that House a recens assensio velleity desire or intention only which our Laws take no notice of was left to an after more mature deliberation when an Act of Parliament should be brought in upon it have gone through all its necessary requisites formalities and debates the Parliament it self were so litle resolved or beleiving any Grievance to be in them as the Lords and Commons by their Ordinance of the first day of November 1645. did ordain that the Master and Councel of that Court should proceed in all things belonging to the Jurisdiction of that Court according to Law And the House of Commons shortly after viz. the fourth day of November 1645. being informed that by reason of a Vote passed in that House the 20 th day of September 1645. that the Court of Wards should be taken away diverse Wardships Liveries Primer seisins and Mesne rates which theretofore fell and happened were not compounded for as they ought to be It was declared that all of them which have happened or shall fall or happen before the Court of Wards shall be put down by the Parliament shall be answered to the Common-wealth and the Master and Councel of that Court were required to proceed accordingly so as it extended not to any whose Auncestors being Officers or Souldiers have been slain or died in the service of the Parliament But the 24 th of February 1645. upon occasion of a debate concerning the Wardship of the Son of Sir Christopher Wray who dyed as they said in the service of the Parliament an Ordinance was brought in and made by the Lords and Commons for the taking away of Tenures in Capite and by Knight Service which saith one of their allowed Mercuries was first given to the Crown for defence of the Kingdom but the Parliament would take care for other supplies But that Ordinance notwithstanding was so little liked of as that without the giving satisfaction which they promised to the Nobility Gentry and Mesne Lords for the losse of their Tenures by Knight service and satisfaction to the most part of the Officers of the Court of Wards it was no more or not much thought of but lay from that time in a slumber untill the first of August 1647. when the mighty Mechanicques of the Army driven on by their ignorant and seditious Agitators who were but the Engines of Cromwell's lurking and horrid designs had by their Remonstrances like Wolves cloathed in Sheep-skins bleated and seemed to thirst only after godly and purified Reformations and Hewson the Cobler and Pride the Drâ—yman and others of the Colledge of their nâ—w â—apientia busying themselves in State as well as Parliament affairs and thombing the Scriptures and the English Translations of Livy and Plutarch at the wrong end thought every one of themselves to be no less than a Solon and Lycurgus admired Agrarian Laws and other old exploded grievances dreamed they were excellent Politiques and not knowing our good old Laws but suspecting them as well they might to be averse and no well-wishers to their ungodly and worse than Machiavillian devices did all they could to destroy them root and branch and at the same time when in their New-England Phrase they held forth a more than ordinary Care of the Kings Honour and Dignity and the freedom rights and interests of the seduced people proposed or commanded rather that the Ordinance for taking away the Court of Wards and Liveryes be confirmed by Act of Parliament provided his Majesties Revenues be not damnified therein nor those that held Offices in the same left without Reparation some other way Which howsoever it were to the remaining and small part of that Parliament who durst not say it but found themselves under a force which against many of their willâ— had undertaken to be their Guard and safekeeping a motive or spur enough to make them put that Vote and ordinance against the Court of Wards and Liveries inâ—o an Act as they would call it of Parliament after 10000 l. given paid to the Master of the Court of Wards for the loss of his place 5000 l. to Sr. Roland Wandesford Atturney General of that Court 6000 l. to Sr. Benjamin Rudiard Surveyer General 3500 l. to Charles Fleetwood late Governour of the destroying Committee of Safety for his supposed loss by the Receiver Generals place of that Court which he pretended he ought to enjoy by a Sequestration from Sr. Will. Fleetwood his Brother who was then attending his Master the King at Oxford and to Mr. Bacon 3000 l. for a pretended loss of his Office for the making and ingrossing of Licences or pardons for alienation all of them but Sir Roland Wandesford being Members of Parliament it did without any mention made or remedy provided for those only supposed Evils in Tenures in Capite and Chivalry in the Billsor intended Acts of Parliament which were sent to the King the 3 of March 1647. when he was at Holmby under a restraint fall asleep for many years after and left all other to expect their satisfaction upon the Parliaments promises and further proceedings And there was so little cause for putting that Sentence in execution against them in the judgment opinion of some of the most knowing sort of the Arraigners of antiquity and the actions of their more understanding fore-fathers as Mr. Nathaniel Bacon in his Historical discourses of the uniformity of the Government of England under the Britain Saxon Danish Norman and other Kings of this Isle until the reign of King E. 3. published in Anno 1647. and in his 2 part from King E. 2. until the end of the reign of Queen Elizabeth printed in Anno 1651. in a
design to make all or most of the Actions of those our Kings and Princes and the Nobility and Clergy in their several reigns for at all of them like one of the Ephori sitting in Censure rather than Judgement upon the Spartan Kings and Government and the Acts of Parliament made in the several Reigns of those Kings he aimed and flung his Fancies clad in a sober Stile and Gravity rather than any Truth or Reason by pretending that they were made and contrived only under their influence to be arbitrary and oppressive to the freeborn people of this Nation for which he got several Preferments under Oliver the Protector of our burdens miseries Though if the Records and Journals of our Parliaments may be credited as certainly they ought to be before him most if not all of our Acts of Parliament were granted and assented unto by our Kings upon the Petitions of the Commons representing the people in Parliament as â—alsoms and great Remedies and redresses of all that they could complain of deliverances from the oppressions frauds and deceipts of one another and prevention of evils which might happen to them and their posterities wherein our Kings have almost in every Parliament given away many diminished very much of their own just legal Rights and prerogatives by granting and confirming their Liberties and Estates with such an infranchisement and freedom as no Nation or people under Heaven now enjoyes And when as heretofore in former Parliaments they gave to their Kings Princes many times too unwillingly any aydes or Subsidies were sure besides the blessings which accrewed to them by many good Laws and wholesome Acts of Parliament to gain a great deal more by their Acts of grace and general pardons only then the aids and Subsidies did amount unto Unlesse it were in the Reign of King H. 8. when the Abby Lands were granted unto him in the raign of King E 6. when the Chanterie remaining peices of those religious Lands were given to him wherein only the Founders and the religious to whom they properly belonged were the only loosers and yet by reason of King H. 8. his Endowments and erection of the Bishoppricks of Oxford Peterborough Chester Gloucester and Bristol the Colledge of Christ-Church in Oxford and the Deanary of Westminster Deanries and Prebends of Canterbury Winchester Worcester Chester Peterburgh Oxford Ely Gloucester Bristol Carlile Durham Rochester and Norwich and his large gifts and grants to divers of the Nobility who had formerly been the Founders or great Benefactors to many of the Abbyes and Prioryes and also to other of his people and the grants of E. 6. Queen Eliz. and King James considered very little of those Lands and Revenues doe at this time continue in the Crown And our many Acts of Parliament against Mortmaines without the Kings Licence Provisions by the Pope or any appeales to be made to him under the most severe penalties of Premunire the Act of Parliament taking away the Popes Supremacy the fineing and putting the Clergy of the Provinces of Canterbury and York under Premunires by King H. 8. An Oath of Renunciation of all fealty and appeales to the Pope an Engagement to observe all Lawes made against his Power the losse of 72 Mannors or Lordships out of the Revenues of the Arch-bishopprick of York and of sundry great Mannors and Possessions taken from the Sees of Canterbury Ely and London The demolishing and dissolution of Religious Houses 3845. Parochial Churches being more than a third part of all the Churches in England impropriated and gotten into the hands of the Laity many of the Vicarages confined to the small and pittiful maintenance of some 20 l. per Annum others 10 and some but 6 l. per An. several Acts of Parliament made in the reigns of several other Kings and Princes clipping the Clergies Power in making Leases or chargeing their Benefices with Cure restraining their taking of Farms forbidding Pluralityes intermedling as Commissioners in Lay or Temporal Affairs or to make Constitutions in their Synods or Convocations without the Kings Assent may declare how little power for some hundreds of years past the Clergy of England have before or since the Reformation either encroached upon or been able to get or keep Finds not in his mistaken Censures and Distortions of most of the Acts of our Kings and Parliaments to make way in the deluded peoples minds for the erecting of Olivers Protean and Tyranical Government Any fault with the erection of the Court of Wards and Liveries nor with Tenures or Wardships but justifying them sayes that the relief paid by the Tenant upon the death of his Ancestor was in memorial of the first Lords favour in giving him the Land and was first setled in the Saxons times that the Law of Wardship may seem more antiently seated in this Kingdom than the Normans times that Wardship was a fruit of the Service of the Tenant and for the defence of the Kingdom Which that Parliament or the following Conventions or Assemblies made no hast to overturn or take away until Oliver Cromwel that Hyaena or Wolf of the Evening having filled the Kingdom with Garrisons several Regiments of Horse and Foot amounting to 30000. men which were to be constantly maintained at the peoples charge to keep them quiet in their slavery had upon the humble petition and advice of that which he called his Parliament acknowledging with all thankfulness the wonderful mercies of God in delivering them from that Tyranny and Bondage both in their Spiritual and Civil Governments which the late King and his party which in a Fog or Mist of sin and delusion they were pleased most injuriously to averre and charge upon them designed by a bloody War to bring them under when as then they were under none and all but the gainers by the spoyles of those Wars have since had more Burdens Grievances and Taxes entailed upon them then ever was in any Nation in Christendome allowed him in a constant Revenue for support of the Government and the safety and defence of the Nations of England Scotland and Ireland a yearly Revenue of thirteen hundred thousand pounds whereof ten hundred thousand pounds for the Navy and Army which far exceeded thaâ— which accrewed to the Crown or Kings of England by Wardships Tenures and Ship-mony which were but casual and upon necessity and but at some times or seldome and alwayes less by more than eight parts in ten of those justly to be complained of awful and yearly Asessements Procured the Assembly or Parliament so called in Anno 1657. to awake that sleeping Ordinance and dresse it into an Act as he called it of Parliament wherein It was without any Cause or Grievance expresâ— or satisfaction given or promised to those that remained the loosers by it enacted that the Court of Wards and Liveries and all Wardships Primer seisins and Oustre le maines and all other charges incident and arising for
Coppy-holder of that Mannor and those Patent Lords doe by their Patents hold their Honor and Dignities in Capite though it be not expressed in their Paâ—ents and should pay as great a Releif as the other Earls and Barons doe by Tenure for no man can sit there but as a Tenant in Capite and acknowledging his Soveraign unless a Coordination should be supposed and that dangerous Doctrine again incouraged nor can these by Creation sit if the House should be dissolved by the change of the others Tenures for that they were but Adjuncts and Associates of them Which was so well understood by Sir Edw. Coke to be a shaking if not an over-turning of the foundation of that high and most honourable Court or Judicatorie as in the Parliament of the 18 â—h year of King James in the proposition which was then on foot to change the Tenures in Capite and by Knight service into free and common Socage he and some of the old Parliament men advised a Proviso to be inserted in that intended Act of Parliament that the Bishops notwithstanding that their Baronies should be holden in Socage should continue Lords of Parliament and in our late times in that great inundation of mistaken Liberty when the outrage of the vulgar and common people greedily pursued the dictates of their ignorance and fancie and that after the House of Lords had been shut up and voted to be uselesse and dangerous the persons of the Barons of England which the Law and the reasonable and antient as well as modern Customes of England did never allow to be arrested were arrested and haled to Prison In the seeking a remedy wherof some of the Baronage pleading their Priviledge it was in Easter Term 1650. in the Kings or upper Bench in the argument of the Countess of Rivers Case argued and urged that all Tenures as well as the House of Lords were taken away so that the Court holding that the Priviledge was not allowable for that she never had reference to the Parliament or to do any publique service the Cause was adjourned Wherefore seeing that the custom of a Court is the Law of a Court and the interrupton of a Custom Prescription or Franchise very dangerous and Cessante causa tollitur effectus the cause or foundation taken away the effect or building faileth that a Lord of a Mannor is not able to create a Mannor or make a Lease-holder or Tenant of one Mannor to enjoy the same priviledges which he did formerly be incorporate a Tenant in another Mannor a House with a Common Appendent or which was before belonging unto it once pulled down though built up again looseth its Common and Prescription or if a Coppy-hold estate come to the Lord by Forfeiture Escheat or otherwise if he make a Lease or otherwise it is no more grantable by Copy of Court Roll or make a Feoffment upon condition and after enter for the Condition broken it shall not be regranted by Copy And if a man hath libertyes by Prescription take letters Patents of them the matter of the Record drowns or takes away the prescription as was held in 33 H. 8. tit precription Br. 102. c. Or if as in the Acts of Parliament for the dissolution of the Monasteries the King shall be before the Tenures be ordained to be in free and common Soccage made or derived to be in the actual Seâ—sin and Possession of all the Lands There will be cause and reason enough to make a stand or a pause and inquire further into it For if the subversion of Tenures in Capite and by Knight Service will not totally or at once ruine and dissolve the House of Peers in Parliament or put upon it a new constitution it will not be good certainly to leave that House and most high and Honourable Court and all its just Rights and Privileges which hath already so much suffered by the Assaults and Batteries of Faction and vulgar Frenzies to an after question of moote point whether or no it be not dissolved or put upon a new Foundation And must needs be very dangerous when as one of the three Estates under the King which is Supream and not Coordinate viz. the Bishops and Lords Spiritual being lopt off the second which is the Lords Temporal shall be but either suspected or doubted to have a being and the third which is the House of Commons shall upâ—â— the next advantage or distemper of that paâ—â—y which lately gained so much by â— supposing it to be the Soveraign bâ—â—ancied â—o be above both it and the King who as the head is above them both and too much gratifie that late illegal and unwaâ—rentable opinion and practice of the Soveraignty of the House of Commons in Parliament or that they alone are the Parliament of England Destroy the hopes and rights of the Bishops being the third Estate in Parliament of ever being restored or admitted again into it from which after a force and a protestaâ—ion solemnly made against it twelve of them imprisoned for making of it they were by an Act of Parliament in an 17. Car. Regis primi prohibiting them as well as all other Clergy men to intermeddle in any temporal affairs or proceedings excluded the House had all their Estates afterwards by an Ordinance of the Lords and Commons without being cited or heard and without the Kings consent and after his going from the Parliament and in the midst of a War and Hostilities betwixt them confiscated and taken from them by the taking away of Tenures per Baroniam being the only cause and reason of their sitting there and constituting them a third Estate will now after his Majesties happy restoration when the waves and rage of the people are so calmed and ceased as the Halcyon is preparing to build her nest be more then ever made to be altogether impossible Hinder and restrain our Princes from recovery of Foreign Rights a necessary inlarging their Dominions making an offensive War or pursuing a flying or like to be recruited Enemy which in keeping a Kingdom in peace and plenty or maintaining the Commerce thereof will be according to the rules of policy and good Government as necessary as that of Davids revenging upon the Ammonites the affronts done to his Embassadors the Wars of our Edward the third or H. 5. in France of the great Gustavus King of Sweden in Germany or the now King of Denmarks and Marquesse of Brandenburghes Wars upon Charles late King of Sweden And when any of those occasions or necessities shall offer themselves or inforce a forinsecum serviciuâ— or service in foreign wars shall have none but Auxiliaries Hirelings to go along with them when as several Acts of Parliament do prohibit the enforcing Hoblers which were a kind of light horsemen Archers Trained Bands and common Souldiers to go out of their Countries unlesse it be in cases of necessity which the common people know not
innocent as useful Tenures in Capite and Knight service of bettering the condition of the Commonwealth and people increasing their Liberties and content and to maintain and keep them in a most happy peace and plenty which will never be done if the Sword and Scepter of the King shall only be like the Ensignes and Ornaments of Regality and made only to represent a Majestie there will another difficulty stand in the way and meet the design of doing it by Act of Parliament and offer this question to consideration Whether an Act of Parliament and the consent of the House of Peers the desire of all the Commons and People of England which must be understood to be signified by their Representatives and the Roy le veult the King giving life and breath and being to it can in the great power and respect which ever hath been by the Law and justly ought to be always attributed unto it Take away Tenures in Capite and by Knight service grand and Petit Sejeanties Homage and all other incidents belonging unto them or the right which the Nobility and Gentry and mesne Lords have to enjoy their Tenures by Knight service the incidents thereunto belonging Which howsoever that in many other things it hath been said that Consensus tollit errorem Conventiâ— vincit Legem Consents and Agreements are more binding then Law will by the Laws of God and Nature and Nations and the Laws of this Kingdom and the opinion of some eminent and learned Sages and Lawyers thereof be resolved in the Negative viz. CHAP. VII That Tenures in Capite and by Knight service holden of the King and the Homage and Incidents thereunto appertaining and the Right of the Mesne Lords cannot be dissolved or taken away by any Act of Parliament FOR that Gods Law and the Law of Nature and Nations have taken care not only to preserve the Rights of Soveraignity and the means and order of Government but the Rights property of every particular Subject do prohibit all injustice it is a Maxime or Aphorism undeniable that Laws made against the Word of God the Laws of Nature or which are impossible or contra bonos more 's right Reason or natural Equity will be void in themselves be the Seal or Stamp of Authority never so eminent And therefore if as the Law hath often determined that the Kings Charters are void and not pleadable by Law when they are repugnant to the Laws Acts of Parliament Maxims and reasonable Customs of the Realm that it is not in the Kings power by his Charter or last Will and Testament to grant away the Crown of England to another Prince or Potentate as it was resolved in the Case of the supposed grant of King Edward the Confessor to William Duke of Normandy and that grant of King John to the Pope to hold England and Ireland of him and that notwithstanding the grant made by William the Conquerour to Hugh Lupus of the Earldom of Chester tenendum per gladium and ita libere as the King himself did hold England the Earldom of Chester was holden of the King that the grant of King H. 2. to the Monks of St. Bartholomews in London that the Prior the Monks should be as free in their Church as the King was in his Crown was adjudged to be void for that the Prior and the Monks were but Subjects and that by the Law the King may no more denude himself of his Royal Superiority over his Subjects then his Subjects can renounce or avoid their subjection to their King and the reason why such or the like grants of the King by his Charter are void is not in regard it was granted without the consent of the people in Parliament but that it was in disherison of his Crown and disabling himself to govern or if he should by his grant exempt a man from paying his Debts or maintenance of hise Wife and Children the joyning of the Lords and Commons with him in an Act of Parliament would not make such a Law to be binding or obligatory And therefore the King cannot saith Dier release or grant a Tenure in Capite to any Subject Dier 44. when King Edward the 3 d. granted to the Black Prince his Son the grant of the Dutchy of Cornwal all Wards Marriages and Reliefs non obstante the Kings Prerogative it was adjudged that the Prince could not seise a Ward which held of the Kings Ward because it belonged to the King by his Prerogative And in 2 R. 2. Robert de Hauley Esquire being arrested and pursued upon an Action of Debt in Westminster Abby where he took Sanctuary was in the tumult slain at the high Altar when the Priest was singing high Masse And the offence and breach of priviledge as it was then pretended to be complained of in Parliament by the Arch-Bishop of Canterbury and the rest of the Prelates and Clergy and prayed that due satisfaction and amends might be made of so horrible a fact It was opposed by the Lords and Commons and they vouched Records and called to witness the Justices and others that were learned in rhe Lawes of the Land that in the Church of England it hath not been accustomed nor ought to have Immunity for Debt or Trespass or other Cause whatsoever except for Crime only And certain Doctors of Divinity Canon and Civil Lawes being thereupon sworn and examined before the King himself to speak the plain truth said upon mature and sound deliberation that in case of Debt Accompt or Trespass where a man is not to lose life or member no man ought to have Immunity in holy Church and said further in the highest expressions those times could afford that God saving his Perfection the Pope saving his Holiness nor any King or Prince can grant such a priviledge and that if the King should grant such a priviledge the Church is and ought to be favoured and nourished ought not to axcept of it whereof offence or occasion of offence may arise for it is a sin and occasion of offence saith the Record to delay a man willingly from his Debt or the just recovery of the same And if an Act of the Commons alone or of the Lords alone or of both together cannot amount to an Act of Parliament the King himself cannot grant away his Regality or Power or means of governing by his Charter or any Act which he can singly doe his concurrence with both the Lords and Commons can no more make an Act to confirme that which should not be done or granted then his own grant or Charter could have done or than if he and the House of Commons only had made an Act As it appeareth by the Ordinance which the Lords Ordainers so from thence called did obtain from Edward 2. whereby he delegated much of his Regal Authority unto them which was afterwards complained of in Parliament made void and the Authors or Lords Ordainers
punished for it hath been clearly asserted by eminent and learned Judges and Sages of the Law as the Lord cheif Justice Hobart Sr. Francis Bacon and Sr. Jonh Davis Attorney General to King James in Ireland that the Superlative power of Parliaments above all but the King is in some things for restrained as it cannot enact things against Right Reason or common Right or against the Lawes of God or Nature that a man shall be Judge in his own Case as that the King shall have no Subsidies whereby to defend himself and his people that Children shall not obey their Parents and the like And that Tenures in Capite and by Knight service are of so transcendent a nature and so radically in the Crown and Fundamental Lawes as no Act of Parliament can take it away or alter it and are so inseperable as Sr. John Davis saith that in a Parliament holden in England in the latter end of the raign of King James it was resolved by the House of Commons that the Wit of man could not frame an Act of Parliament whereby all Tenures of the Crown might be extinguished And Judge Hutton who in the Case of the Ship-money would allow the King no more Prerogative then what could not be denyed him did publicquely deliver it for Law which in that great and learned Assembly of Judges and Lawyers was not contradicted that Tenures in Capite are so inseperable in the Crown as the Parliament will not nor cannot sever them and the King cannot release them And such is the care for the defence of the Kingdome which belongeth inseperably to the King as Head or supream Protector so as if any Act of Parliament should enact that he should not defend the Kingdome or that he should have no aides from his Subjects to defend the Realm such Acts would not bind but would be void because they would be against all natural Reason And Judge Crooke also doth in his Argument against the Ship-money wherein he concurred with Justice Hutton alleage that if a statute were made that a King should not defend the Kingdome it were void being against Law and Reason And when a Parliament is called by the Kings Writ to preserve his Kingdom and Magna Charta so little intends that any future Parliament should alter or take away any Liberties granted or confirmed thereby or any fundamental Laws which are incorporate with the essence of Government as it hath been by several confirmations of it enacted that all Laws hereafter to be made to the contrary shall be Null and void and with good reason as to the King and Mesne Lords in the changing of their Tenures into Socage when as ex contractu obligatio and ex obligatione Actio should as well hold in those benificial pactions which were in the Creation of those Tenures betwixt the King Lords and Tenants as in Bonds Bills and Assumpsits or any other contracts whatsoever And is so great a part of right Reason in the opinion of Forreigners and according to the Law of Nature and Nations as in the German Empire though it hath heretofore lost much of its power and authority by the greatnesse of some of the Princes and the many Liberties and Priviledges granted to Cities Towns its remaining Prerogatives notwithstanding are said to be Jura Majestatis instar puncti divisionem non recipientia adeoque Imperatoris personae cohaerent ut nec volens ijs se abdicare aut alium in consortium vocare possit so inseperable as they are capable of no division and do so adhere unto the Emperors person as he cannot if he would renounce or transferre them over to any other And Bodiâ— that understood France very well saith that Si Princeps publica praedia cum imperio aut jurisdictione eo modo fruenda concesserit quo ipse fruetur etiam si Tabulis jura Majestatis excepta non fuerunt ipso jure tamen excepta judicantur if the King shall grant any of his Lands to hold as freely and with as much power and jurisdiction as he himself enjoyed it the jura Majestatis or Regalities are always adjudged and taken to be excepted though there be no reservation or exception in the Letters Patents And the Parliament of Paris were so careful of the Kings Rights in Governing as when Francis the first had granted to the Queen his Mother a Commission to pardon and restore condemned persons it declared that such a grant quum sine Majestatis diminutione communicari non possit seeing it could not be granted without diminution of his Royal Authority was void thereupon the Queen Mother intermedled no more therein The Conclusion WHen all therefore which can be but pretended against Tenures in Capite and by Knight service shall be put together and said and done they will come to no more then this The general Assessements for men and Horses and necessaries for War whether men will or no are a service incumbent upon every mans estate though they bought and purchased their Lands the Knight service which is now complained of is but where their Lands were given them for that purpose and ex pacto voluntate by Agreement For it hath allwayes been accompted to be no less than reason that qui sentit commodum sentire debet et onus the Rose and the Prickle must goe together and he that hath the profit may be well contented to doe something for it especially when it is no more then what he did agree to doe and beleived it to be a favour And if they now take those Lands to be a burden may if they please give themselves an ease by retorning of them to those that gave it And should not be murmured at or complained of when as those that live near the Sea doe live under a Charge or Imposition which is annual and sometimes very great upon all And in Holland are commanded and ordered yearly by the Dijck Graven or Magistrates appointed for that purpose to repair and amend their Sea walles Or as it is also in England by Direction of Law and Commissions of Sewers and doe but in that though their Lands were dearly paid for and not freely given as those doe which hold their Lands by Knight service and defend themselves by defending others And it will ever be a Rule and Maxime in Loyalty as well as in Law and right Reason that by the Lawes of God Nature and Nations as well as of England there is and ought to be a natural Allegiance to the King that Oaths of Allegiance and Supremacy doe enjoyn every Subject to defend his Prince and his just Rights and Jurisdictions And that the safety of every man in particular and his own discretion should advise him to it unless they will think it to be wisdome in the Citizens of Constantinople who in the Seige thereof would rather keep their money and riches for the Turks to plunder then help
ejus in artibus sint experti quod domus regia sit tanquam gymnasium supremum nobilitatis regni schola quoque Strenuitatis probitatis morum quibus regnum honoretur floret ac contra Irruentes securatur hoc revera bonum accidisse non pottuisset regno illi Si nobilium filâ—i Orphani Pupilli per pauperes amicos parentum suorum nutrirentur and greatly approve as he did of our Tenures in Capite and by Knight Service which have heen since better ordered and more deserve that and a better commendation and to put forth your hand to rescue them who have hitherto as great Beams peices of Tymber or Pillars helped to bear up and sustain the Fabrick of our Antient and Monarchical Government and have no other fault but that they are misunderstood and misrepresented to the vulgar who by making causelesse complaints multiplying them have done of late by our Laws and best Constitutions as the Boys are used to do when they hunt Squirrels with Drums shouts and Noyses And that your Lordship who is able to say much more for that Institution and Right use of Tenures will be pleased to accept of my good Intentions and pardon the Imperfections of London 23. November 1660. Your Lordships most Humble Servant Fabian Philipps THE CONTENTS CHAP. I. OF the antiquity and use of Tenures in Capite and by Knight service in England and other Nations page 1. CHAP. II. The holding of Lands in Capite and by Knight service is no Slavery or Bondage to the Tenant or Vassals 12. CHAP. III. Tenures of Lands in Capite and by Knight service are not so many in number as is supposed nor were or are any publique or general Grievance 29. CHAP. IV. How the design of altering Tenures in Capite and by Knight service into Socage Tenures and Dâ—ssolving the Court of Wards and Liveries and the Incidents and Revenue belonging thereunto 〈◊〉 out of the Forges of some private mens imagiâ—â—â—ions to be afterwards agitated in Parliaâ—â—nt 145. CHAP. V. The Benefits or Advantages which are expected â—y the people in putting down of the Court of wards â—nd Liveries and changing the Tenures in Capiâ—e and by Knight service into free and common Sâ—cage 154. CHAP. VI. The great and very many Mischiefs and Inconveniences which will happen to the King and Kingdom by taking away Tenures in Capite and Knight service 157. CHAP. VII That Tenures in Capite and Knight service holden of the King and the Homage and Incidents thereunto appertaining and the right of the Mesne Lords cannot be dissolved or taken away by any Act of Parliament The Conclusion 258. Errata's or Faults escaped in Printing by the hast of the Presse PAge 1 line 1 leave out and p. 2 l 28 for be read by p. 6 l 12 for or Knights r and Knights p. 8 l 16 leave out that ib. r in Capite and Knight service p. 9 l 25 for where r were p. 17 in the margent leave out the quotation note p. 21 l 18 r. his enfant p. 23 l 23 r. be the lesse free p. 24 l 26. for was r. were p. 36. l 12 r them 20 H. 3.6 p. 38 l 3 for E 1 r. E 3. p. ib. l 6. r person 42 E 3.5 p 40. l 31. for of r. or p. 43. l 18. r thought to p. 54 l. 16. leave out and. p. 68 l. 14 leave out was p· 81 l. 12 for aâ— r. in p. 82 l. 15 for E. 3 r E 1. p. 100 l. 7 for 1648 r. 1643. p. 111 l. 2 leave out his p. 125 l. 1 for Episcopium r Episcopum ib. l 18. r hold by ib. l. 23 r nor could 126. l 12 for â—e r. to p. 131 l 32. r For it p. 13â— l. 1 leave out Lawes after the. ib. l. 2 leave out the. ib. l. 15 for and r. for p. 135 l 6. r or by p. 136 l. 14 for and â— which p. 138 in the margent leave out Litletons quotation p. 140 l. 13 leave out an p. 154 l. 10 r. Grand and Petit. p 159. in the margent for XI r II. p. 162. against l 12 in the margent put V. ib. against l 33. put VI. p. 163. l 4. for Protections r Portions ib. in the margent against l 8 put VII ib. against â— 20 put VIII p. 164 l 4. for and r shall ib. in the margent against l 15 put IX p. 165 against l 33. put X. p. 166 against l 5. put XI ib. against l. 10 put XII ib. against l 14 put XIII ib. against l 26. put XIV p. 17 r l. 15 for amore r. more p. 174 in the margent for Olbertus r. Obertus p. 183 in margent for Lovelaces r. Loâ—es p. 184 l. 16. leavo out in p. 185 l. 32. leave out they p. 187 l. 9. for enernate r enervate ib. l 24. for displaced r. displayed p. 192 l. 15. leave out if not recompensed by some Annual payment p. 194 l. 8. r. under the penalties of ibib l 9. leave out under the penalties p. 212 l 22. r be a Baron ibib leave out of Holt. p. 217 l. 2. for derived r. deemed p. 222 in the margent against l. 15 put L. p. 241 in the margent against l 6. put LXIV p. 24â— against l 4 put LXV p. 246. against 26 put LXXII p. 247. l 4. for know r knowing p. 254. l 20 r which is ib. 28 r and theâ— p. 255 l 24 r or that p. 259 l 18. for it r them ib. l 23 leave out upon all p. 268. l 4. leave out and. p. 269 l 15 r or toâ— p. 274. l 33 for of r if p. 275. l 11 leave out would ruine◠〈◊〉 l 13 r Baronies would be ruined CAP. I. Of the Antiquity and use of Tenures in capite and by Knight service in England and other Nations THe Law of Nature that secret and great Director under God and his Holy Spirit of all mens Actions for their safety and self preservation by the Rules or Instinct of Right Reason and the Beams of Divine Light and Irradiations So far as those Laws of Nature are not contrary to positive and Humane Laws which are alwayes either actively or passively to be obeyed having in the beginning of time and its delivery out of the Chaos made and allowed Orders and distinctions of man-kind as they have been found to be more Rich Wise Virtuous Powerful and Able than others therfore the fitter to Protect Defend and do good unto such as wanted those Abilities Endowments and constituted ordained the faith and just performances also of Contracts Promises and Agreements and the acknowledgements of benefits and favours received being no strangers to those early dayes when the Patriarch Abraham had leave given him by Abimelech King of Gerar to dwell in the Land where it pleased him and that Abimelech in the presence of Phicol the chief Captain of his Host who took himself to have some concernment in it required an
and be admitted Turn the Tenures in Capite which are only so called from the duty of Homage and the acknowledgement of Soveraignity and Headship in the King into a Tenure in Socage which is so far from acknowledgeing the King to be chief or to ingage as the other doth their Lands to do him service as it is but a Tenure as it were a latere is no more then what one Neighbour may acknowledge to hold or doe to another for his Rent or money be a Lease for a Life or one or more years or as Tenant at will and levels and makes rather an equality then any respect of persons which if ever or at all reasonable or fit to be done is in a democratical or popular way of Government but will be unexampled and is not at all to be in Monarchy may make many of the people which are not yet recovered out of a gainful Lunacy to beleive they were in the right when they supposed themselves to be the Soveraigns Ireland which in the subverting Olivers time was to have their Swords by the like Tenure turned into Plow-shares though their warres and taxes were never intended to leave them was to pay but 12000 l. per annum to turn their better Tenures Conditions into worse will if they be not come again to their wits expect the like prejudicial bergain Bring many inconveniences and mischiefs to the Nobility and Gentry of Scotland if their Tenures in Capite and Knight service and those which are holden of them as Mesn Lords shall as ours be taken away with their services and dependencies Licences of Alienation benefits of Investitures infeodations and the like it being amongst others as a reason given for Wardships in that Kingdom in the Laws of Scotland in the reign of their Malcombe the 2. which was before the Conquerours entring into England Ne non suppeterent Regiae Majestatis facultates to the end that the King should have where-withall to defend the Kingdom And a letting loose of a fierce and unruly people who are best of all kept in awe order by a natural long well enough liked subjection to their Mesne Lords and Superiours into a liberty which cannot be done without a disjointing and over-turning all the Estates of the Nobility and Gentry of that Kingdom and may like our late English Levellers either endeavour to do it or bring themselves and the whole Nation to ruine by a renversing of the fundamental Laws and that antient order and constitution of that Kingdom wherein the estates and livelyhood of all the Nobility and Gentry and better part of the people are hugely concerned And besides a great damage to the King in his Revenues and profits arising out of such Tenures if not recompenced by some annual payment Will howsoever take away that antient Homage and acknowledgement of Superiority which from that Kingdom to this of England cannot be denyed to be due and to have been actually and antiently done and presidented and not in one but several ages fidem obsequium ut vassallos Angliae Regibus superioribus dominis jurejurando promisisse to have done their Homage and Fealty as vassals to our English Kings and bound themselves by oath thereunto as namely to Alfred Edgar Athelstane William the Conqueror William Rufus Maud the Empresse Henry the second and Edward the first the later of whom with all the Baronage of England in a Letter to the Pope did upon the search of many Evidences and Records stoutly assert it Will be no small damage and disturbance to the Kings other Regalities and Prerogatives and in the Tenures of the Cinque Ports who are to provide fifty ships for the guarding of the Seas and the Town of Maldon in Essex one the Town of Lewis in Sussex as the Book of Doomsday informeth where King Edward the Confessor had 127 Burgesses in dominio eorum consuetudo erat si Rex ad Mare custodiendum sine se suos mittere voluisset de omnibus hominibus cujuscunque terrae fuissent colligebant 20 sâ—lidos hos habebant qui in manibus arma custodieâ—ant had 127 Burgesses in his demeâ—ne of the King and when he sent any of his men to guard the Seas they were to gather 20 s. a man which was to be given to those that manned the Ships in Colchester where the custom then was that upon any expedition of the Kings by Sea or Land every house was to pay six pence ad victum soldariorum Regis towards the quarter or livelyhood of the Kings Souldiers and likewise prejudice him in his grand and Petit Serjeanties and many thousand other reservations of honour and profit by and upon Tenures in Capite and Knight service which revived and called out of their Cells wherein those that are to do and pay them are content they should sleep and take their rest for ever would go near to make and maintain an Army with men and Provisions The King when the Tenures in Capite shall be taken away shall never be able to errect his Standard and to call thereunto all that hold Lands Fees Annuities and Offices of him to come to his assistance according to the duty of their Tenures and the Acts of Parliament of 11 H. 7. chap. 18. And 19. H. 7. chap. 1. of forfeiting the Lands and Offices holden of him under the penalties which was the only means which the late King his Father had to protect as much as he could himself and his Subjects or to manifest the justice of his Cause in that War which was forced upon him and was very useful and necessary heretofore for the defence of the Kings of England and their People and proved to be no otherwise in the Bellum Standardi so called in the reign of King Stephen where some of the Barons of England and some of the English Gentry gathered themselves to the Royal Standard and repelled and beat the King of Scotland and in several Kings reigns afterwards repulsed the Scotch and Welch Hostilities and Invasions and at Floddon Field in King H. 8 ths time when the Duke of Norfolk and his Son the Earl of Surrey and diverse of the Nobility and Gentry which accompanied them vanquished and slew the King of Scots The benefit whereof the Commons of England had so often experimented as in diverse Parliaments they Petitioned the King and Lords to cause the Lord Marchers and other great men to repair into their Counties and defend the borders and was so necessary in France to assemble together the Bans and Arrierebans which were but as our Tenants in Capite as it helped King Charles the 7 th of France to recover that Kingdom again out of the hands and possession of our two Henries the 5. and 6. Kings of England And if any Rebellion or Conspiracy shall hereafter happen When Cum saepe coorta Seditio saevitque animis ignobile vulgus Fury and Rage of
that in a Parliament holden in the 14 th year of the raign of King Richard the 2 d. the Lords and Commons did pray the King that the Prerogative of Him and his Crown may be kept and that all things done or attempted to the contrary may be redressed and that the King might be as free as any of his Progenitors were which the King granting gave to it the force and power of an Act of Parlaiment And consider that the innovation of Laws or change of Customs are dangerous and as St Augustine saith non tam utilitate if there were any profit in them prosunt quam Novitâ—â—e perturbant do more hurt than good by their Novelty that it will be unsafe to take away or dig up foundations that where the inconveniences in the old Laws are not apparant and the conveniences to come by the new not infallible or not likely to deceive our expectation of them it will be perilous to change our Laws more perilous when they be many and most of all when they be fundamental That the more Power and Might is in the King to defend us the better will be the Ends which by the Means is intended and that therefore in the Parliament of 7 E. 1. the Prelates Earls Barons and the Commonaltie of the Realm did acknowledge that to the King it belonged of his Royal Signory streightly to defend force of Armour and all other force against the Peace and to punish them which shall do contrary according to the Laws and usages of the Realm and thereunto were bound to ayd their Soveraign Lord at all Seasons when need shall be that to make a Captain of a Cripple or a Constable which should keep the Peace in a Parish and be ready to repell any violence which should be offered to the Inhabitanâ—s to be blind or Bed-rid would not answer the End or bâ— for the Safety of those that expect it from him And that his Majesties opinion expressed in his Message or Declaration from Breda before his return into England is and ever will be a maxime composed of very great reason and truth that his Majesties just rights are the best preserver of the peoples Liberties And may believe before it be too late that to take away Tenures in Capite and introduce the inconveniences before mentioned will be but as a Prologue or usher to Levelling and the gate or entrance to the Agrarian Devices and the supposed Saints taking possession of the Estates of those which they call the wicked And that the laying by of Tenures in Capite and their services and making use of Mercenary and Mechanick Souldiers may help us to as many miseries and follies as we have pertaked of in our late troubles from our Servants make them to become our Masters and by inureing them to insolencies against others teach them how to domineer over the people which shall be their pay-Masters after that over Parliaments garbling and purging the House pulling out and putting in whom they please turn Legislators and Remonstrance makers from their head quarters make themselves not the Repairers of Breaches but the makers and causers of them ingrosse all the places and imployments of the Kingdom throw down Laws and Government create out of themselves and their own Party Mayors Generals to tyranize awe the people and abuse their Laws and Liberties and play the fools at Coffee-Houses with disputing and discoursing of Rotas and Balloting Boxes and which of their Whimsies and ignorant contrivances would best make a Government Committ Perjuries in abundance and make their oaths more changeable and lesse to be trusted then the Wind or Weather or a Lillies Almanack and make it their only businesse to enslave and insult over the people and Metamorphose them into as many shapes of baseness perjuries Hipocrisies dissembling and wickednesse as poverty hope of gain or to get or preserve estates though it be but to have Poliphemus his curtesie to be last of all ruined fear or flattery or an accursed ambition to raise an estate out of other mens miseries could perswade or draw them unto That the taking away of Tenures in Capite by Knight service is not desired by any universal or general Petition at all of the People that not one in every 20 of those that are concerned hold by those Tenures nor one in every 100 of those that hold by other Tenures and are not concerned do desire it That the injudicial and inconsiderate desires of a very few of the common people who doe sometimes as they have many times done in our late troubles and too late repented it out-do Children in asking Stones instead of Bread and Serpents for Fishes are not to be hearkened unto that the Surfets upon Liberty are many times very dangerous may prove as fatal unhappy though granted or asked with the best of intentions as that of giving great Sums of money to the Scots in the begining of our unhappy Wars calling their invasion a brotherly assistance or that of giving Liberty to the long Parliament not to dissolve without their consent That if Augustus Caesar when by his great Prudence he had put the broken peices of the Roman Republick which was Civilibus Discordiis lacerata wofully torn with civil Discords into a well composed Monarchy and blest the Empire a great part of the World with an universal Peace could find no better a way to fix and make it lasting then to put many of the Souldiers under a Gratitude and Concernment to love and cherish it by giving them Lands for Life or Inheritance to engage them to their former Duties when occasion should happen which saved the Charge and Trouble on all sides as well to the conquered as the conquering in maintaining Roman Legions made up of a Medley or Gallimausry of all manner of Nations It cannot now be good when the long lasting Monarchy of England hath been lately and lamentably torn into peeces to make up a Common-wealth could never be agreed upon to alter or take away a Course of constant and ordinary defence which hath been for so many Ages past the happy Support of this Antient Monarchy And that it could not have been any bad or likely to be unsuccessefull Policy but a means of an Establishment of our late Souldiers and Controullers had in the Allowance of their cheap purchases been tyed to Tenures by Knight Service for the Defence of the Kingdom as the late King of Sweden was to hold of the Empire by the Treaty of Munster And if that Bracton who was a Lord Chief Justice in the Reign of King H. 3. was of opinion that by a paâ—tition of Earldoms and Baronies deficeret Regnum quod ex Comitatibus Baronijs dicitur esse constitutum would ruine the Kingdom which is constituted of Earldoms and Baronies he would now certainly foresee greater Mischiefs and Inconveniencies in the taking away of Tenures in Capite and by Knight Service or changeing