or by reason of any such Tenures Wardship Primer seisin or Oustre les maines be taken away from the said 24 th day of February 1645. though notwithstanding this pretended Act he could for his own profit continue and take the Fines upon Alienations And that all Homages Licences Seisures Pardons for Alienations incident or arising for or by reason of Wardship Livery Primer seisin or Oustre le maines and all other charges incident thereunto be likewise according to the new mode of making retrospective Acts of Parliament taken away from the said 24 th day of February 1645. And that all Tenures in Capite and by Knights service of the late King or any other person when as the Parliament that made the Ordinance for taking away Tenures in Capite and by Knight Service did as was said promise that all the mesne Lords and others which held of the King and had others held of them should be recompenced for the loss of their Tenures and all Tenures by Socage in cheif to be taken away and turned from the said four and twentieth day of February 1645. into free and common Socage Whereby in all probability he did but cause those Tenures in Capite and Knight service to be put down to the end that he might take them up again at his pleasure when he should have finished his wisht and devilish designs of making himself a King over a degenerate as to the generality of the people sinful and harassed Nation or in stead of them to rule as he had begun with his Janisaries and Bashawes or Major Generals But whatever he or his over awed and flattering Assemblies would make a long often deluded Nation to believe concerning Tenures in Capite and Chivalry or that kind of fixed and constant part of the Militia It was not accompted in the holy Scripture to be any grievance to the people of Israel that Saul in the government of them had in every Tribe and of every kindred many thousands of men of War of the most valiant in a standing Militia as of the Children of Ephraim twenty thousand and eight hundred mighty men of valour famous and such were our Nobles Tenants in Capite throughout the house of their Fathers and of Zebulun such as went forth to Battle expert in war and were not of double heart fifty thousand or that of the Children of Benjamin the greatest part of three thousand kept the Ward of Sauls house Or that David a King after Gods own heart did appoint the Chief Fathers and Captains of thousands and hundreds and their Officers that served the King in any matter of the Courses which came in and went out Month by Month throughout all the Months of the year and of every Course twenty and four thousand which were as our Knights Fees or Tenures in Chivalry out of a select or more refined and fit part of the People whose Estates as well as their Persons made them lyable unto it for the general Musters or trained Bands did by many hundred thousands exceeding that number which were only as a Landguard or ready help and defence upon all emâ—rgencyes although it be not there said that they held their Lands by that or any military Service yet a great resemblance and affinity may be discerned betwixt that and the cause reason of Tenures in Capite which amongst that people was lesse requisite necessary for that they being alwayes Marshald under Captains of Thousands Hundreds Fifties Tens were by some not expressed Tye or Obligation or their grand Obedience to the command of their Kings and Princes which by a set Law of the Almighties own enacting in all matters as well military as civil had no lesse a punishment than Death affixed to the Transgressors thereof always ready to go up to battle with their King against any neighbour Nation or others that did them injury and leaves but this only difference betwixt our Tenures in Capite and by Knight Service and if they were not then in use amongst them their fixed provisions for wars offensive or defensive that theirs was a continual charge upon so many of the people in every year by turns or courses and ours upon the Princes Nobles and many of the Gentry and better part of the people for all of the Gentry had not the happiness to have Lands originally given them to hold by such kind of Tenures or did not afterwards purchase them of the first proprietors of those beneficiary and noble kind of Tenures when wars should happen which being not often or might not perhaps be commonly once in forty or more years were not then also called out to War themselves but when the King went in person or sent his Lieutenant and then were to tarry with him or send one in their stead at their own charges but for forty dayes No wrong was done by Solomon to the people of Israel when he made the people that were left of the Hittites Amorites Perezites Hevites and the Jebusites and their Children which were not of Israel to pay Taxes and doe publique work And the Children of Israel no Servants for his work but men of war and chief of his Captains of his Chariots and Horsemen Jehoshaphat did not any evil in the fight of the Lord when as notwithstanding that the Fear of the Lord had fallen upon all the Kingdoms of the Lands that were round about Judah so that they made no War against him and the Philistines the old Enemies of Judah and Israel brought him presents and Tribute Silver and he waxed exceedingly great and built in Judah Castles and Cities of Store placed Forces in all the fenced Cities of Judah set Garrisons in the Land of Judah he understood it whilst the Lord was with him he walked in the first ways of his Father David to be a Salus Populi to have the men of War mighty men of valour in Jerusalem eleaven hundred and threescore thousand men which waited upon the Kings besides those whom he put in the fenced Cities It was no Imposition upon the people of Israel neither is it in holy Writ made to be any Error in Government that Saul whom our Kings Nobility in the Creation of military Tenures did but imitate when he saw any strong man or any valiant man took him unto him Or that David after he was King hearing of the fame of the Hebronites sought for them and when there were found among them at Jazer of Gilead Jerijah the chief and two thousand and seven hundred mighty men of valour made them Rulers over the Reubenites and it seems were also but of some part of them for that in the next Chapter the Ruler whom he appointed over the Reubenites the Gadites and the half Tribe of Manasseth was Eliezer the son of Zichri over the half Tribe of Manasseth in Gilead Iddo the Son of Zechariah Nor did Nehemiah that great and good
how to judge of and the little Parliament so called in the beginning of the year 1640. upon the invasion of an Army of â—actiâ—us Scots and a letter produced by the King that they had written for aid to the French Kâ—ng did not rightly apprehend for it is not to be doubted but that the cheerful and ready aids upon all occasions given to the Kings of England by the Tenants in Capitâ— and Knight Service and the Nobility and Gentry and their Tenants Friendâ— and Followers taking Arms and foâ—lowing the Royal Standard was a great cause â—f their Conquests in France and Warlike atchivement in that and other parts of the World often beating back the incursions of the Scotch and Welch and deâ—ending the borders The taking away of thâ— Knights Fees or Tenures by Knight Service from the Nobility and Gentry without any Recompence if they would be content to part with them or to accept it Will be an Act of great Injustice Regula quippe feudalis et firma est quod Dominus nec in totum nec pro parte minuere adimereve Jus vassallo quesitum possit sine culpa eoque non convicto for it is a fixed and constant Rule in the Feudal Law That the Lord cannot neither in the whole nor in part without a forfeiture or conviction of his Tenant diminish or take away the Vassals Right and it would be against Right Reason and Equity not to give a Recompence in Caâ—se of pulling down or fireing a House in a Necessity of War to prevent an Enemy but much more against it and our Magna Charta in Case of no Necessity to Sacrifice without a just Recompence given for it the Estates and Rights of some to pacifie the Fears of others and disturb and incumber the Estates of all or a great many to free the Estates of a few which would be aâ— unjust as for the Lords of Mannors to make By-laws forbidding the Services of their Tenants and without any forfeitures or convictions grant or sell away their Lands or Copy-hold Inheritances to Strangers or dedicate the Profits thereof to the publick wherein the owners or Proprietors shall get none or very little share in it or such as will be impreceptible and appeared to be so much against Law and Reason as when in the dissolution of the Abbyes and Monasteryes the Nobility and great men who had been Founders of many of them or given a great part of the Lands thereof were to be the losers of that which should have reverted or come unto them if they could not consist with the first Intentions King H. 8. did take a care to gratifie many of them with great quantityes and Portions thereof and to some granted intire Priories and Nunneries of their Ancestors founding as to John Earl of Oxford the Priory of Colne and Nunery of Hedingham in Essex and the like to many others which might be here remembred The Publique Faith which was wont to have so much care taken of it when she borrowed money to make our unhappy warres and Contentions of so much of the Nation as hold by the Tenures in Capite and Knight Service and of all the other parts of the people who by Oaths of Supremacy Protestations and Covenant were not to prejudice the King nor by their Covenant any other in their Rights and Liberties will now be broken which when Livy a Heathen Writer and one that very well understood affairs of State upon the making of a Law at Rome to pacify a mutiny that the Prisoners for Debt should not be bound or fettered as the manner then was could say that Ingens vinculum fidei a great Obligation or Bond of Faith amongst men was that day broken he would have without doubt said more were he now aâ—ive as to our breach of Faith amongst men but a great deal more if he had been Christian as to God Almighty Take away not only the Honor but the publick Benefits of those Tenures and feudal Rights which are so highly and justly esteemed in all other Kingdoms and Principalityes which are so happy as to live under Monarchy the best of Governments as they can give them no other Character then that Jura Regnorum Ducatuum Marchionatuum adeoque totius Imperij Leges Fundamentalâ—s ac nervi quibus Monarchiae Romanae cum ipso senescente mundo languescentis lutei pedes colligantur inâ—iis continentur Therein are contained the Laws and Rights of Kingdoms Dukedoms Maâ—quisates the Fundamental Laws of the Empire and the Nerves and Sinews by which the Empire languishing in the old age of the world hath been sustained And that Feuda Feudorumque Jura â—â—delitatem â—idem publicaâ—â— pacem incolumnatem Communis Patriae firmant â—irmissimum Militiae contra Communes Reipublicae hostes neâ—vum ac praesidium suâ—ministrat adeoque fulcâ—a Germanico Romani Imperi◠〈◊〉 desiderant Feuds and the Rights thâ—â—â—of do six and consolidate the Fidelity publique Faith Peace and wellfare of the Common-wealth and administreth the greatest help and strength in war against the Common Enemy and is worthy to be called the Prop of the German and Roman Empire Make our Nobility and Gentry who have by their Chivalry and high Attempts by Sea and Land rendred them second to none and published the Fame and Glory of their Actions as far and farther than ever the Roman Eagles flew to be like the Roturiers or Paysants oâ— France and a reproach or hissing to all Natioas or like Davids Embassadors when the Children of Ammon had misused them and shaved the one half of their Beards and cut off their Garments in the middle even to their Buttocks and to be put behind all but the Dutch and Switzers the former of which do Trade under Taxes Excise the latter are but the Mercenaries and Hirelings of the French and Spanish Kings in their Wars and Hostilities and ranâ—king us with them and those little and despicable Commonwealths of Luca and Geneva cast us into the Giddy and at last woeful Presidents and Consequences of the unquiet headed Argentinians Lindorians Citizens of Siena Genoa and Florence who by ruining and rooting up the Nobility and Gentry and making three rancks and degrees of their Citizens some great some mean and the rest of the vulgar the two last putting out the first cast themselves into a Circle of blood and misery out of which nothing but their former Government was able to refcue them Occasion the losse and ruine of purchasers and Mony-lenders enlarge their complaints of double treble Feoffments Mortgages which by the disuse of the Court of Wards and finding of Offices after the death of Tenants in Capite and by Knight Service have been more than formerly and wherein some of our late Reformers were known more to have exercised their wits than their Consciences conceal'd Dormant and fraudulent Assurances carried in the Pockets of some to pick the Pockets of others which by reason of the
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
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
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
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