Wigorniensis mentioned by that learned Knight Sr. Roger Twisden in his preface to the Laws of William the Conquerour published by the eminently learned Mr. Selden informs us did importune Maud the Empresse ut eis Edwardi Regis Leges observare liceret quia optimae erant That the Laws of King Edward might be observed because they were the best And when William the Conquerour ordered the Rents and Revenues of such as held of him to be paid into the Exchequer it was non simpliciter nec haeres ab hereditate nec ut ab ipso haereditas tollitur sed simul cum haereditate sub Regis custodia constitutus tempâ—râ— pupillaris aetatis Not to take away the Inheritance but to keep and educate him during his Minority For It could be no inconvenience to the publick welfare of the Nation to have the Children of the best ranck and quality for such were then the Tenants in Capite and by Knight service virtuously and nobly educated in Arts and Arms whereby to be enabled to do their Prince and Country service and their Lands and Estates in the interim to be protected and defended from Neighbour or other injuries Nor to be married to their own degree or a nobler quality when as by the means of intermarriages betwixt the Saxons Normans as between Lucia the Sister of Morchar Earl of Northumberland a Saxon and Juo Talbois a great Norman Baron and betwixt Ralph de waiet a Saxon by a British or Welch Woman Emme the Daughter of William Fitz Osbern Earl of Hereford by which he was by the Conquerour made Earl of the East Angles And many more which might be instanced their mutual discontents and animosities calming into reconciliations and friendships had the like effect as the tye and kindness of the intermarriages had not long before in King Ina's time who himself marrying with Guala a British woman his Lords and great men intermarrying with the Welch Scots their Sons also marrying with their Daughters the Nation became to be as Gens una one people in a near consociation and relation and the Norman H. 1. afterwards found it to be not unsuccessefull in his own marriage with Matilda the Daughter of Malcolm King of Scots by the Sister or Niece of Edgar Atheling of the Saxon Royal line It was no grievance when the Charter of Liberties which was the original of a great part of our after Magna Charta was granted to the people of England by K. H. 1. who is therein said omnes malas consuetudines quibus Anglia opprimebatur auferre to abolish all the evil customs with which England was oppressed when it would have been strange that Tenures in Capite and by Knight service should remain as a part of the Kings just prerogative and be so well liked of and approved consilio consensu Baronum By advice and consent of the Barons if there had been any grievance originally or naturally in them Nor so much as a Semblance of it in the reign of H. 2. when a general Inquisition was made per Angliam cui quis in servitio seculari de jure obnoxius teneretur thorough England What secular or temporal services due by Law were not performed And as little in the Parliament at Clarendon in the same Kings reign where in the presence of the King Bishops Earls Barons and Nobility facta fuit recognitio sive recordatio cujusdam partis consuetudinum libertatum Antecessorum suorum Regis viz. Henrici Avi sui aliorum quae observari debâ—bant in Regno ab omnibus teneri A recapitulation and rehearsal was made of some of the Customs and Liberties of their Ancestors and of the King that is to say of King H. 1. and others which ought of all to be observed and kept in the Kingdom in which there was nothing against the Feudal Laws or Tenures in Capite and by Knights service but many expressions and allowances of them And if otherwise it would have been something strange that the issue and posterity of those Barons should in King Johns time adventure all that could be dear or near unto them to gain the Liberties granted by H. 1. with some addition and never grudge that King the same Prerogative when as hazarding the forfeiture of their own Magna Charta of Heaven to gain a Magna Charta on Earth for their posterities They had greatly over-powered their King at Running Mede where their Armies stood in procinctu acie Facing one another Pila minantia pilis Threatning death and distruction to each other or would so willingly have hung up their Shields and Launces and returned to their peace and obedience by accepting of that Magna Charta if they had not taken it to be as much for their own defence the good of the Kingdom as it was for his nor so willingly afterwards in the reign of King Henry the 3 d. his Son have clad themselves in Steel made a Combination and bouâ—d themselves by oath one to another never to submit to a peace until they had a just performance of what his Father had granted them endured the Popes then direful Fulminations and never rested until the King himself had confirmed that Magna Charta by a most solemn oath in procession with the Bishops who with lighted Tapers in their hands anathematiz'd all the infringers thereof if Tenures in Capite and the enableing their Prince to defend them had not been a part of their own Liberties nor could they be imagined to be otherwise when as by an Act of Parliament also of that King the great Charter was to be duely read in all Counties of England and Writs and Letters were sent to all the Sheriffs of England commanding them by the oaths of twelve Knights of every County to enquire what were the antient Rights and Liberties of the People no return was ever made that Tenures in Capite and by Knight service either were or could be any obstructions to them or that so often bloodily contested and too dearly purchased Magna Charta nor was it any publique grievance when as in the Parliament of 26 H. 3 in a great contest betwixt him and the Baronage and great men of England touching his ill Government and diverse exactions and oppressions the profits which he had by his Tenures and Escheats were said to have been sufficient to have kept him from a want of mony and oppressing his Subjects Nor in Anno 42. H. 3. when the King upon those great complaints and stirres betwixt him and the then Robustious and sturdy Barons of England occasioned by his misgovernment which busied the people with Catalogues of grievances he by his Writs or Commissions appointed in every County of England Quatuour milites qui considerarent quâ—t et quantis granaminibus simpliciores a fortioribus opprimuntur et inquirent diligenter dâ— singulis quaerelis et injurijs a quocunque factis
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
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
to hold of the King by an honourable service of grand Serjeanty Then to hold in Socage and be â—yed to do yearly and oftner some part of Husbandry or drudgery upon his Lords Land for nothing or pay an annual Rent besiâ—â—â— many other serviâ—e payments duties as for Rent Oats rent Timber rent Wood Malâ— rent Hoâ—y rent for fishing liberty to Plow at certain seasons and the like And if they had been esteemed or taken to be a bondage the Commons of Eng. certainly in the Parliament of 1 R. 2. Would not by their Speaker have commended the Feats of Chivalry shewed to the King that thereby the people of England were of all Nations renoumed and how by the decay thereof the Honour of the Realm was and would dayly decrease Or in 9 H. 4. Petitioned the King that upon seisure of the Lands of such as be or should be attainted or grants of such Lands by the King the services therefore due to other Lords might thereupon be reserved The good and original benefit whereof derived to the Tenant from the King or mesne Lord that first gave the Lands and the consideration that by the taking of that a way every one was in all justice equity to be restored to his primitive propriety and that which was his own and so to reduce the Lands to the Heirs of those that at first gave them restraining them might be in all probability the reason that not only Capite and Knight service Tenures but Copyhold other Tenures and estates also having as much or more pretence or fancy of servitude in them were never so much as petitioned against in Parliament to be utterly taken away Some instance whereof may be had in that of Villinage which being the heaviest and most servile of all kind of Tenures though some thousand Families in this Kingdom there being antiently some Tenants in villenage belonging almost to every Mannor by desueâ—ude expiration of that course of Tenures now esteeming themselves nothing less were never in any Parliament desired to be abolished Bracton Fâ—eta other antient Authors in our English Laws alleging it to be de jure Gentium and that nihil detrahit libertaâ—i is not to be reckon'd a servitude much less surely then are Tenures in Capite and Knight service which the learned Grotius in the utmost that he could in his Book de antiquitate reipublicae Batavicae alleage for the freedom and independency of the Hollanders though he could not deny but that the German Emperours did claim them to hold in vassalage or as a Feiff oâ— the Empire will not allow to be any derogation from their liberty but concludes quod etsi optinerent non eo desinerent Hollandi esse liberi cum ut Proculus egregie demonstrat nec Clientes liberi esse desinant quia Patronis dignitate pares non sunt unde liberi feudi orta est appellatio That if it should be granted it would make the Hollanders not to be free when as Proculus very well demonstrateth Clients or vassails did not cease to be free because they are not equall to their Patrons in dignity whence the name or Term of franck Fee was derived and Sr. Henry Spelman saith quemadmodum igitur omnibus non licuit feudum dare ita nec omnibus accipere as it was not lawful for every one to give lands to hold of him so it was not allowed to every one to take prohibentur enim ignobiles servilisque conditionis homines et quidem juxta morem Heroicis seculis receptum munera subire militaria for ignoble and men of servile condition according to the usage of Heroick times were â—orbid to attempt military Offices and Imployments as may be evidenced also in those antient Customes and usages of those grand eminent Commonwealths of Rome and Athens in the latter of which notwithstanding the opinion of those who deny the use of Tenures by military service to have been in Greece before the time of Constantine Porphyrogenneta it appears that Solon had long before made a second classis or degree of such as could yearly dispend three hundred Bushels of Corn other liquid fruits were able to find a Horse of service called them Knights Soli igitur saith judicious Spelman nobiles feudorum susceptibiles erant quod praeâ—â—usticis et ignobilibus longe agiliores habiti sunt ad tractanda arma regendamque militiam And therefore the Nobility and Gentry were only capable of such Fees or Tenures in regard that they were more agile and fitter for the use of Arms and military Government and Order and was therefore called by the French heritages nobles et liberis et ingâ—nuis solummodo competunt a noble inheritance and only belonged to men that were free born and of ranâ—k and quality And wereâ—no longer ago than in Anno Dom. 1637. in the argument of the case of 〈◊〉 Ship-mony in the Exchecquer Chamber so little thought to be a Slavery to the people or any unjust or illegal prerogative of the Kings as Mr Oliver St. John none of the reverend and learned Judges of England then contradicting it alleaged them to be for the defence of the Realm and that they were not ex provisâ—one hominis not of mans provision but ex provisione legis ordained by Law and that the King was to have the benefit that accrewed by them with Wardships primer seisins Licences of Alienation and Reliefs as well to defend his Kingdom as to educate his Wards Nor can they be accounted to be a Bondage or Slavery unless we should fancy which would like a dream also vanish when men shall awake into their better senses and reason that those ornaments in peace and strength in time of war which have been for so many ages and Centuries since King Inas time which was in an 721 now above 940 years agoe and may have beene long before that ever accompted to be harmlesse and unblameable and in King Edgars Time by a Charter made by him unto Oswald Bishop of Worcester said to be constitutione antiquorum temporum of antient time before the date of that Charter were an oppression that all rankes and sorts of the People should endure a slavery and not know nor feel it nor any of the contemporary writers antient or modern take notice of it that the Peers of this Kingdom should be in Slavery and not know or believe it The The gentry of the Kingdom should be as worshipful Slaves and not understand or perceive it And the Commons of the Kingdom what kind of Slaves it should please any without any cause to stile them That Honours Gifts and Rewards Protection Liberties Privileges and Favours to live well and happily of free gift and without any money paid for the purchase should be called a Bondage when as a Tenure in Socage ut in condemnatos ultrices manus â—â—ttant ut alios suspendio aliâ—s membrâ—rum
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
Debts or charge of Children connot rationally conclude or argue the Fines to be excessive no more than a common weight or burden which may easily be born or carried by any man in health doth make it to be of a greater weight or burden because another man by reason of sicknesse or other disabilities is not able to bear or stand under it or that a reasonable or small rent which Tenants are to pay to their Landlords is therefore too much or unreasonable because a poor or decayed Tenant cannot so well bear or pay it as he was wont or as one that is thriving or before hand might doe That all Leases of above One hundred years were made to draw Wardships contrary to Law when as such or the like Collusions were by the Statute of Marlebridge prohibited and the Parliament was mis-informed for long Leases under 500. years were not made by that Court lyable to Wardships and that undue proceedings were used in the finding of Offices to make Jurors find for the King which was but to adjorne or bind them over to the Bar of the Court of Wards in case that there was any doubt of the Law or Evidence Or when the Lords and Commons in Parliament the second day of June 1642. by the nineteen Propositions which were as they alleaged for the establishment of the Kings honour and safety and the wâ—lfare and â—ecurity of his Subjects and Dominions and being granted would be a necessary and effectual means to remove those jealousies and differences which have unhappily fallen betwixt him and his people and procure both his Majesty and them a constant course of honour peace and happiness Did propose petition and advise that the Lord high Constable of England Lord Chancellor or Lord Keeper of the great Seal of England Lord Treasurer Lord privy Seal Earl Marshal Lord Admiral Warden of the Cinque Ports cheif Governour of Ireland Chancellor of the Exchequer Master of the Wards Secretaries of State two cheif Justices and cheif Baron may alwayes which shewed they had no desire for the present or the future to take away the Tenures in Capite and by Knight service be chosen by approbation of both Houses of Parliament Did not conceive them to be any Disease or Gangreen in the Body Politique at the making of the 2 d. Declaration of the Lords Commons in Parliament dated the 12 th of January 1642. Concerning the Commission of Array occasioned by a book then lately published Entituled his Majesties answer to the Declaration of both Houses of Parliament concerning the said Commission of Array Printed and Published by the care of Mr. Samuel Brown then and now a Member of the House of Commons wherein many Arguments being used and if they had been grievances would not have become the Parliament to have urged or pressed them as an argument against the Kings having power to raise men by his Commissions of Array and were then so little denyed to be for the necessary defence of the King and his Subjects as they were rather taken by that Parliament to be as the hands and Arms of the bodie politique worthy a continuance perpetuity and very well deserving the good opinion which the Parliament then had of them in the expressions following We deny that there is an impossibility of defence without such power viz. the Commissions of Array And affirm that the Kingdom may be defended in time of danger without issuing such Commissions or executing such power For we say that the Law hath provided several ways for provision of Arms and for defence of the Kingdom in time of danger without such Commissions 1. All the Tenures that are of his Majestie by Barony Grand Seâ—jeanty Knight service in Capite Knight service and other like Tenures were all originally instituted for the defence of the Kingdom in time of War and danger as appears by the Statute of 7 E. 1. of Mortmain which saith servitia quae ex hujus modi feodis dâ—bentur ad defensionem Regni ab initio provisa fuerunt vide Chart. H. 1. irrotulat in libro Rubro Scac. Coke Instit. 75. Bracton 36.37 Britton 162.35 H. 6.41 Coke 8.105 Coke 6. â— Instit. 1 part 103. These Tenures in the Conquerours time were many and since they are much increased and these are all bound to find men and arms according to their Tenures for the defence of the Kingdom 2. As those Tenures are for the defence of the Kingdom so the Law hath given to his Majestie diverse Priviledges and Prerogatives for the same end and purpose that with the profits of them he should defend himself and his people in times of danger of which his Majestie is and always hath been in actual possession since his accesse to the Crown For the defence of the Kingdom his Majestie haâ—h the profits oâ— Wardships Lâ—veries Primer seisins Marriages Reliefs Fines for Alienation Customs Mines Wrecks Treasure trove Escheats Forfeitures and diverse others the like casual profits That by these he may be enabled to defend the Kingdom and that he enjoying them his Subjects might enjoy their Estates under his Protection free from Taxes and Impositions for defence Therefore it is declared 14 E. 3. chap. 1. That all the profits arising of an aid then granted to the King by his people And of Wards Marriages Customes Escheats and other profits riseing of the Realm of England should â—e spent upon the safeguard of the Realm of England on the Wars in Scotland France and Gascoigne and no places elsewhere during the Wars And the Lords and Commons in Rich. 2 time knowing the Law to â—e so did as appears â—y the Parliament â—olls 6 Rich. â— m. 42 passe a â—etition that the King would live oâ— his own Revenues and that the Wards Marriages Reliefs Forâ—â—itures and other profits of the Crown might be kept to be spent in the Wars for the defence of the Kingdom 3. If the said Tenures and casual profits rising by his Prerogative will not serve for defence but more help is necessary by the fundamental Lawes and Constitutions of this Kingdom his Majestie is intrusted with a power to summon Parliaments as often as he pleases for defence of himself and his people when his ordinary Revenues will not serve the turn And there is no other legal way when the others are not sufficient but this and this last hath been ever found by experience the most sure and successefull way for supply in time of imminent danger for defence of the Kingdom and to this the Kings of this Realm have in times of danger frequently had recourse A main end why Parliaments are called is for defence of the Kingdom and that other Supplies thâ—n thâ—se before mentioned cannot be made without a Parliament Nor was there any publique or general damage so much as supposed to be in them the first of February 1642. when in the propositions sent by those Lords Commons which remain'd in Parliament
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
Seisins and Liveries and all other incidents belonging to the Tenures in Capite and by Knight Service be reserved and continued to the King and Mesne Lords and the Mariages of the Wards be put to a just apportionment and rate not to boxing or bidding with every pretender or such as shall be procured on purpose and was thought by the Sons of Rapine to be a parcel of godliness according to two years present value of the Estate and a moderate Rate or Rent for the Lands And if that they do not like to sue or be sued in that Court may do it either in the Exchequer or Chancery and try which of those Courts they shall like the better There being no Reason to be shown why Wardships Rents and Marriage Money should not be paid as quietly or without the Noise or Clamour of Oppressioon by some orderly Course to be taken in the collecting of it as the first Fruits of Arch-bishoppricks Bishoppricks and all the Clergyes Benefices which was at first derived from the Popes Usurpations and afterwards setled in the Crown or as the Tenths of all the Monasteryes and Religious Lands which by Act of Parliament were setled in the Crown for the Support and Maintenance thereof And now all the Lines are come in and meet in one Center we may aske the Days that are past and demand of the Sons of Novelty how it should happen or where the Invisible Cause or Reason lurketh that a People at least too many of them not long agoe covenanting whether his late Majesty would or no to preserve his Honor Rights and Iurisdâ—ctions and calling God to witness that they had no Intention to diminish them should presse or perswade the King to part with the vitals of his Regalitie or let out the blood thereof to take in water instead of it which that learned John Earl of Bristol who in his many Travails and Embassies to forrein Princes had observed the several Strengths Policyes and defects of Governments of all the Kings and Princes of Christendom could think no otherwise of that high and just Prerogative of Kings then that to discharge the Tenures in Capite would be consequently to discharge them of their Service to the Crown When as their can be neither Cause nor Reason to make any such Demands and that all the Lords of Mannors in England who may already find the Inconveniences of making too many small sized Freeholders and I wish the Kingdom may not feel it in the Elections of Parliament men and Knights of the Shire as well as it doth already by the Faction and Ignorance of such as choose Burgesses in Towns and Corporations who many times choose without eyes ears or understanding would not be well content to have the many perplexed and tedious Suits at Law betwixt them and their troublesome Tenants about Customs and Fines incertain which in every year do vex and trouble the Courts in Westminster Hall or that which the late feavorish Fancies of some would call Norman Slaveryes should be either a Cause that they must be forced or over intreated to part with their Copy-hold Estates Herryots Fines for Alienations and all other Incidents thereunto belonging or that it would be a good Bargain to have no Compensation or Recompence at all for them or no more than after the Rate of what might Communibus Annis one year with another be made of them Whenas to have the intended Recompence for the Court of Wards paid as is now proposed by a part of the Excise or Curses of the People or to have the poor bear the burden of the rich or those to bear the Burden of it which are not at all concerned in any such purchase or Alteration and will be an Act which can have no more Justice or Equity in it then that the payment of First-Fruits which is merely Ecclesiastical should be distributed and charged for ever upon the Layety and the other part of the People as well as the Clergy That the Tenths which the Layety and some of the Clergy do now contentedly pay should be communicated and laid upon all the Kingdom in general in a perpetuity That the draining or maintaining the Banks and Sluces and Misfortunes many times of the Fenns in Lincolnshire and other particular Places should be charged upon the Estaâ—es of all the men in England that could not be concerned either in profit losse or Dâ—nger Or that in the enclosing of Commons or in Deafforrestations the Commoners should have their Compensation paid by all men in City Town and Country for that which was not 〈…〉 nor was ever like to be any Gain or Aâ—vaâ—tage to them Or that the losses of Merchants by Shipwâ—acks Pirates or letters of Reprisal should be repaired and born by all the rest of the people that went no partnership or gain with them Or which way the people of England should think it to be for their good or safety that as it was in the dayes of Saul there should not be a Sword or Spear in Israel that the Lords of England whose great Auncestors helped to maintain all our Liberties being in Parliament in the 20 th year of King H. 3. pressed by the Bishops to Enact that Children born before Matrimony when their Parents after married should be legitimate answered Nolumus mutare Leges Angliae we will not change the Lawes of England should not take the overturning so many of the Fundamental Lawes and Liberties of the Kingdome to be the ruine or destruction of it to be of a greater concernment And that the King will not think it to be a most Christian as well as an Heroick answer of John King of France when he was a Prisoner in England to our King E. 3. and was denied his Liberty unless he would amongst other things doe Homage for the Realm of France and acknowledge to hold it of England That he must not speak to him of that which he neither ought nor would doe to Alienate a Right Inalienable that he was resolved at what price soever to leave it to his Children as he had received it from his Auncestors that affliction might well ingage his person but not the inviolable right of the Crown where he had the honour to be born over which neither Prison nor Death had any power and especially in him who should hold his life well employed sacrificing it for the Immortal preservation of France And that the people of England should not rather imitate the wisdome as well as goodness of the Elders of Israel when as Benhadad not content with Ahabs Homage had demanded unreasonable things of him Say unto the King hearken not unto him nor consent But remember that it was their fore-Fathers which in a Parliament of King E. 3. holden in the 42 th year of his raign declared that they could not assent to any thing in Parliament that tended to the disherison of the King and his Crown to which they were sworn
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
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
sint semper prompti parati ad servicium suum integrum explendum peragendum cum semper opus adfuerit secundum quod debent de â—eodis tenementis suis de jure facere Appointed and commanded that all Earls Barons Knights and their Servants should be ready with their Horse and Arms as they ought to do their Service which they owed and were to do for their Fees and Lands when need should require and was beneficial to the Vassal or Tenant CAP. II. The holding of Lands in Capite and by Knight Service is no Slavery or Bondage to the Tenant or Vassal FOr his lands were a sufficient recompence for the service which he performed for them and his Lord besides the lands which he gave the Tenant gave him also a protection and help in lieu of the service which he received from him For though as Bodin observeth vassallus dat fidem nec tamen accipit The Tenant makes fealty to his Lord but receiveth none from him there is betwixt them mutua fides et tuendae salutis et dignitatis utriusque obligatio contracta a mutual and reciprocal obligation to defend one another And when the Donee had lands freely conferred upon him and his Heires upon that consideration omnia feoda as well in Capite and Knights service tenure as Copy-hold and more inferior Tenures being at first ad arbitrium Domini no man can rightly suppose that he would refuse the reservation of Tenure and incidents unto it or imagine it to be a servitude or any thing else but an Act of extraordinary favour arising from the Donor which by the Civil Law and Customes of Nations chalenged such an hereditary gratitude and return of thankfulnesse as amongst many other priviledges thereupon accrued to the Donor if any of the Heires of the Lord of the Fee happened to fall into distresse the Heires of the Tenant though never so many ages and descents after were to releive them Domini utilitatem proferre et incommoda Propellere et si cum poterit non liberaverit eum a morte feudo sive beneficio suo privabitur such a Donee or Tenant was to advance the good of his Lord or Benefactor and hinder any damage might happen unto him and forfeit and be deprived of those lands if he did not when he could rescue him from death for Feudum ut habeat et Dominum non juvet rationis non est it is no reason that he should enjoy that land or benefit and not help or assist him which gave it and by our Law if such a Tenant ceased to do his service if not hindred by any legal impediment by the space of two years upon a Cessavit per Biennium brought by the Lord the land if no sufficient distresse was to be had was forfeited if he appeared not upon the distresse and paid the arreares And such Tenure carrying along with it an end and purpose in its original institution not only of preservation and defence of the Donor but of the Kingdome and protection also of the Tenant and the land which was bestowed upon him And being a voluntary and beneficial paction submitted unto by the Tennant insomuch as Feudum whether derived from the German word Feec or warre or a fide prestanda or a faedere inter utrosque contracto is not seldom in the Civil Law called beneficium may with reason enough be conceived to be cheerfully after undergone and approved of by the Tennants and their Heirs receiving many Privileges thereby as not payign any other aydes or Tallages besides the service which their Tenures enjoyned them w ch by a desuetude or necessity of the times is not now allowed them not to be excommunicated by the Pope or Clergy which H. 2. amongst other Laws and Customes observed in the time of his Grandfather H. 1. in the Parliament at Clarindon claimed as a special priviledge belonging to him and those which held of him in capite which in those days was worthily accounted amongst the greatest of exemptions and of creating like Tenures to be holden of themselves with services of War Wardship Marriage and other incidents to have their heirs in minority not only protected in their persons and estates which in tumultuous and unpeaceable Times was no small benefit but to be gently and vertuously educated in Bellicis artibus feats and actions of arms taught to ride the great horse and manage him and himself compleatly armed with Shield and Launce married without disparagement in his own or a better rank and quality his equitatura or Horse and Arms could not be taken in execution unless he dishonourably absented himself when his service was required and then all that he had was subject to execution saving one horse which was to be left him propter dignitatem militiae and have no usury which in those dayes especially until the reign of E. 1. By Jews and a sort of foreiners called Caursini was very oppressive and intollerable run upon them for their fathers Debts whilst they were in wardship Besides many other great priviledges belonging to Knights Gentry the original of many of whom was antiently by Arms and military service allowed them by our Laws of England as wel as by the Civil Law and Law of Nations as to bear Arms make Images and Statues of their Ancestors and by the Civil Law a preheminence that more credence should be given by a Judge to the oath of two Gentlemen produced as Witnesses then to a multitude of ungentle persons ought to be preferred to Offices before the ignoble in â—uâ—io enim presâ—mitur pro nobiliâ—ate ad efficia regenda and honoured in the attire and apparrel of their bodies as to wear Silks and purple colours and ex consâ—eâ—udine non suspenduntur sed decapitantur are not when they are to suffer death for offences criminal used to be hanged but beheaded with many other priviledges not here enumerated which our common people of England in their abundance of freedom have too much forgotten Were so much respected here in the raign of H. 2. saith the eminently learned Mr. Selden as one was fined one hundred pounds which in those days of more honesty and less mony was a great sum of mony for striking a Knight and another forty Marks because he was present when he was compelled to swear that he would not complain of the injury done unto him the grand Assize in a writ of right which is one of the highest Trials by Jury and Oath in the Law of England is to be chosen by Knights and out of Knights a Baron in a Jury for or against him may challenge the Pannel if one Knight at the least were not returned of the Jury if a Ribaud or Russian stroke a Knight without cause he was to loose the hand that struck him Kings have Knighted their eldest Sons and somtimes sent them to neighbour Kings to receive that Honour and Barons and Earls
never be so good or for the ease of the people as when the King by a constant and well ordered Court shall be rescued from the importunityes and necessityes of great men and preserved from the Errors which an indulgence or munificence to so many Cravers Petitioners and Pretenders as do usually throng the Courts and presence of Princes might draw or perswade them unto and the Wards and their Friends not put to seek Remedies or just Defences in their Suits or Concernments in other Courts amongst a multitude and intermixture of Causes of another nature nor to procure an accesse for their Petitions to their Kings or at their Courts or Residences where a continual assembly of all the weighty cares and emergencies in Government will inevitably inforce or necessitate delayes and notwithstanding the help of some costly Mediators and intercessors cannot nor ever could be easily got through but may in such a fixed and peculiar Court as that of the Wards Liveriâ—â— with a small expence of time or attendance and the assistance of certain allowed Fees to proper and appointed offices which cannot be any grievance where they shall be any thing within the bounds of Reason or Moderation know how to find out and go to their proper Remedies as readily as an Apothecary can to his Boxes of Medicaments or the Physician to the experimented directions of his Books or Recipes and were sure to be heard and have redresse in a Court of Justice guided and governed by wise and good men who being as great as they were good were fenced and compassed about with comprehensive and restraining Oaths enjoyning all manner of right and forbidding the least of Injustice and wrong to be done unto the People Preserved the estates inheritance and evidences of the Wards guarded and rescued the estates of Lunatiques and Ideots from those that would deceive them helped the Wards in the discovery and recovery of their debts and rights rescued them from all wrongs enjoyned and prohibited other Courts from any cognizance or determination of their concernments except when a Will was to be proved or an Administration granted or the like to or for the use and benefit of a Ward and committed the education of such whose Fathers dyed Papists so to Protestants as many and amongst them some Earls and Nobility have by the direction of the King and the care of that Court been put under the Tuition of some Bishops and thereby become Protestants and their Posterities fastened in that Religion most of which cares of that Court and benefits received by the people could not be at all or not so well had and enjoyed when there was no Court which besides the prâ—venting and punishing of stoln marriages and many other benefits not here mentioned may notwithstanding some deviations and irregularities which have been committed by some Officers and Clarks which may easily be remedied be as useful as other of the great Courts in Westminster-Hall which were not dissolved or put down in the reign of King E. 1. because all the Judges of the Kings Bench common Pleas and Exchequer except John de Metingham and Elias de Beckingham were by judgment of Parliament found guilty and grievously Fined for Briberies extortions oppressions and other great misdemeanors but to the great good and comfort of the people and nation have as before those offences committed by some of their Judges in the absence of the King in Gasconie ever since continued as great Magazines of Justice and the Asylums or Sanctuaries of all that are distressed So as no Serpent for ought ever appears lurked under that green grasse nor any Crocodile nourished or bathed himself in those wholesome waters laid not his eggs in the Sand of our Estates or Properties assaulted not the innocent Passenger nor spoiled our Flocks of Sheep or herds of Cattle and a Marvail or wonder it may therefore be that so good so necessary and so beneficial an Institution should have any Innate or original evil or grievance in it and the quaerulous humour of the vulgar who like a herd of Swine do too often cry when one of many of them is but justly pinched or wrung by the ear for his unjust Trespassings or as those irrational Guards of the night do use to howl or bark because one of their kind half a mile off torments himself in a Moon-light night in barking at his own or any other shaddow should never stuffe out or enlarge their complaints against that which was accounted to be no grievance in Edward the Confessors time whose memory was and is yet like the Nard or Spices of the East and his Laws so venerable as our English fore-fathers could in the loss and ruines of their Country hide them under his shrine at Westminster and thought themselves happy when as with Tears and Importunities they obtained of William the Conquerour to be restored to them and left them as rich Heir-looms and a precious Legacy to their Posterity who got the care and observation of them to be afterwards inserted into the Coronation-Oath of the succeeding Kings of England And could no way be suspected not to be highly contented with them when as they were Leges propriae Laws of their own Country consuetudines antiquae in quibus vixerant Patres â—orum ipsi in eis nati nutriti fuerunt and the antient Customs in which their fore-fathers were born or bred up in not collected or put together by incertain reports partial or doubtful upon reasonlesse traditions or hear-says of an afflicted trembling or affrighted degenerate people under the sense and miseries of a late Forreign Conquest but per praeceptum Regis Wilâ—elmi electi sunt de singulis totius Angliae Comitatibus 12 viri sapieâ—tiores quibus jurejurando injunctum fuit coram Rege Gulielmo ut quoad possent tramite neque ad dextram neque ad sinistram declinantes legum suarum consuetudinum sancita patefacerent nil praetermittentes nil addentes nil praevaricando mutantes orderly and judicially inquired and sought out by a fair and just election of twelve of the wisest men of every County in England by virtue of King William the Conquerours Writs or Commission to whom being brought into the Kings presence they were injoyned by oath that as much as possibly they could they should have a care to do right and neither incline to the right hand nor to the left without any omission addition collusion or deceit should certifie their legal Customs which being done and written out by the Kings command by the proper hand-writing of Aldered Arch-Bishop of York and Hugh Bishop of London were by the King ratified by his Proclamation and made perpetual per totum Regnum Angliae inviolabiliter tenendas sub paenis gravissimis Throughout all England under grievous penalties to be observed and kept And so approved by the people as about 70 years after the Citizens of London as the continuation of Florence
them that is Freeholders and such as hold by Knight Service So in the great Court of all the Kingdome none were antiently personally called to give Judgement and advâ—se therein but such as were near to the King and bound and obliged to him by a greater Bond and Tye of Faith and Homage that is to say his immediate vassals Barones nempe cujuscunque generis qui de ipsi tenuere in Capite ut videndum est in breve de summonitione wherein they are summoned in fide homagio quibus tenentur in the Faith and Homage by which they held partim in charta libertatum Regis Johannis and Barons of any kind whatsoever which held of him in Capite as may appear by the Writs of Summons to Parliament the Charter of King John Hence the Barons of England are in our laws said to be Nati Consiliarij born Counsellors of State and Baro signifying Capitalem Vassallum majorem qui tenetur Principi Homagij vinculo seu potius Baronagij hoc est de agendo vel essendo Baronem suum quod hominem seu clientem praestantiorem significat A Baron who is a chief or Capital Vassal is bound to his Prince by the Bond of Homage or rather Baronage which is to be his Baron or man or more considerable Clyent and makes a threefold dvision of Barons who by Bracton are called Potentes sub Rege great or mighty men under the King Barones hoc est robur belli and Barons which is as much to say as the strength of War into feudal or by prescription 1. Qui a priscis feodalibus Baronibus oriundi suam prescriptione tuentur dignitatem which being discended from Antient feudal Barons do continue their dignity by prescription 2. Rescriptitios qui brevi Regio evocantur ad Parliamentum which are called to Parliament by the Kings Writs 3. Diplomaticos which are by Letters Patents and Creation and that Barones isti Feodales nomen dignitatem suam ratione fundi obtinuerunt those Feudal Barons doe hold their dignity by reason of their Lands and Tenures and that Episcopi suas sortiuntur Baronias sola fundorum investitura Bishops are Barons only by investiture of their Baronies Lands and Temporalties And the most excellently Learned Mr. Selden who was well known to be no stranger to the old and most choice Records and Antiquities of the Kingdome doth not doubt but that the Bishops and Abbots did sit in Parliament and were summoned thither only as Barons by their Tenures per Baroniam and in his Epistle to Mr. Augustine Vincent concerning his Corrections of Yorkes Catalogue of Nobility doth most learnedly prove it by many Instances besides that in â—he Case of Thomas Becket Arch-bishop of Canterbury in 11 H. 2. and the claime made and allowed in Parliament in 11 R. 2. by all the Bishop Abbots and Priors of the Province of Canterbury which used to sit in Parliament that de Jure et consuetuâ—ine Regni Angliae all Bishops Abbots Priors and other Prelates whatsoever per Baroniam Domini Regis tenentes holding of the King by Barony were Peers of the Parliament which agreeth with the opinion of Stamford that the Bâ—shops ne ont lieu en Parlement eins in respâ—ct de lour possessions annexes a lour dignities have no plaâ—e in Parliament but in respect of their Possessions annexed to their Dignities and that Mr. Camden saith that divers Abbots and other spiritual men formerly summonned by writ to Parliament were afterwards omitted because they held not by Barony and that it was mentioned and allowed to be good Law in a Parliament of King E. 3. que toutes les religieuses que teignent per Barony soient tenus de vener au Parlement that all the religious which hold by Barony are to be summoned to Parliament And as to the temporal Barons doth besides what he alleageth of the Thanes or Barons of England in the Saxon times that they held by personal service of the King and that their honorary possessions were called Taine-Lands and in the Norman times after denoted by Baronies and the eminent and noted Case of the Earls of Arundel claiming and allowed to be Earls of Arundel by reason of their holding or Tenure of Arundel Castle and Sir John Talbots being Lord Lisle ratione Dominij et Manerij de Kingston Lisle doth by 22 E. 3 fo 18.48 E. 3. fo 30. other good Authorityes conclude that the Tenure of a Barony is the main principal Cause of the Dignity that 130 temporal Barons by Tenure were called by several writs to assist the King cum equis Armis with horse and Armes and the spiritual being about 50 were called ad habendum servicium suum and that the greatest number of Barons during all that time were by Tenure that the most part of the Barons by Tenure and Writ untill the middle of the Raign of King R. 2. and those that were called by Writ were such as had Baronyes in Possession that the honorary possessions of Earls were called Honors and reckoned as part of their Earldoms which were holden in Capite the chief Castle or seat of the Earls or Barons were called Caput Comitatus seu Baroniae the head or chief of the Earldom or Barony and that in this sence Comitatus integer is used for a whole Earldom in the grand Charter and Bracton and Servicium quarte partis Comitatus for the fourth part of an Earldom that Hugh de Vere Earl of Oxford Magnavile Earl of Essex and divers other antient Earles were Cingulo Comitatus Gladio Comitatus cincti girt with the Girdle or sword of their Earldoms which he conceiveth to be an Investiture All which may by the Records of this Kingdom be plentyfully illustrated by very many instances and by the Rolls of the Constables and Marshals of England in which upon the March of the Army of King E. 1. towards Scotland in the 28 year of that King Humfridus de Bohun Comes Hereford Essex Constabularius Angliae recognovit per os Nichoâ—ai de Segrave Baneretti sui locum suum tenentis se acquietari per servitium suum per Corpus suum in Exercitu presenti Scotiae pro Constabularia in Comitatu Hereford Humfry de Bohun Earl of Hereford and Essex Constable of England declared by Sir Nicholas Segrave his Baneret and Lieutenant that he was to be acquitted for the Constabulary in the County of Hereford where it seems some Manors or Lands in that County were annexed to the said Office or held by grand Serjeanty by the Service of himself in the Army for Scotland I tem idem Comes recognovit per eundem Nicholaum Servitium trium feodorum Militum faciendum in dicto Exercitu pro Comitatu Essex per Dominos Iohannem de Ferrariis Henricum de Bohun et Gilbeâ—tum de Lindsey milites Also the said Earl acknowledgeth by the said Sir Segraveâ—â—e â—â—e Service of
their winding Sheets It will be against the Peoples Oaths of Supremacy to desire to purchase of or diminish the Kings Rights and Jurisdictions And against their own safety to weaken the hands and power of their Prince that should protect and defend them and commit the trust of protecting and defending the oppressed poor to the oppressing Rich the Chickens to the Kites the harmless Lambs to the cunning Foxes or greedy Wolves the weak and the Innocent to such as shall endeavour to hurt them and charge and burden themselves and their Posterities with a Rent and excise for mischiefs and inconveniences enough in perpetuity Take away that power and ready means of protecting and defending them and that which should enable him to procure according to his Coronation Oath to the Church of God and the Clergy and people firm peace and unity in God according to his power and to administer indifferent and upright Justice by forsaking a certain willing way of defence for a constrained or incertain by taking away the best for so much of it of all defences for that which in the very birth of it is justly feared to be the worst Draw a Curse rather than any expected blessing or happinesse upon all such Tenures in Capite and by Knight service as by seeking to purchase their Homages and obedience to their Prince and a better and long experimented and prosperous way of defence of themselves posterity shall seek or endeavour to break the reiterated oaths and contracts of all their Ancestors to be but a part for a short time of the general defence of the Kingdom like a Life-guard at hand to skirmish and make head against an Enemy untill a Parliament can be called and have time to consult of the means or the whole Nation summoned for help and imbodied will be a perjury more sinful then that of the Children of Israel to the deceitful and turn-coat Gibeonites and may be more severely punished by God Almighty upon the hereafter withering Estates of those men and their generations who shall not only break their own oaths and faith but the oaths and faith also of their more grateful Ancestors who would never have done it Will make our common people which were wont like the lesser Wheels in a well ordered watch to be governed by the greater or superior to run themselves into as many blessings as they did in these last twenty years when they wrested the Sword out of their Kings hands and by the power of those two great Devils Interest Reformation in the abuse and not right use of the words which may well wear the name of those Devils which were called Legion to cut murder pillage and rob the honest and loyal part of the the people lasciviendo in quaerelas quaestiones playing the wantons in their complaints and evil practices which they found to be so beaten a track or rode of prosperity to the journeys end of their wickedness complain of every thing that likes not their fancies or ignorance and from Wardships and Tenures return again in their ingratitude to God and man to their late design of taking away Tithes Coppyholds by enforcing the Lords to take a year or two years purchase for the rights of their Mannors Copyhold Estates from thence to the Act of Parliament intended in our Reformers late deformations to abate Rents where the Landlords were not so well affected as the Tenants to make or maintaine War against their Soveraign And if there had nothing been said or written as we hope there is sufficient to justify the Innocency or right use of Tenures in Capite and by Knight service it had been enough as it was to the vertuous Seneca to be persecuted and put to death by Nero who loved all Ill and hated all Good that Cromwel that Minotaure to whom in his Labâ—rinth of Subtilties Hypocrisy and abused Scripture our Lawes and Liberties were daily sacrificed by the Flattering Addresses of a company of Knaves or Fooles very well know after he had cut down the Royal Oak and blasted all the lofty Pines and Firres in Druina's Forrest procured an Act for renouncing and disannulling the Title of our now most graciovs Soveraign and his Brothers to the Crown of England and their Fathers Dominions and all other which should pretend any Title or Claim from by or under them or any of them how much it concerned his most wicked purposes of establishing that which should be called a Common-wealth under His and his posterities Protectorship and most Arbitrary and Tyrannical Government by a perpetual standing Army of 30000. Horse and Foot an intollerable Excise and monthly Assessements to pay them set up the other or tother House instead of a House of Peers made up for the most part of Mechanicks transformed into Colonels and Major Generalls and some other who might have been better Englishmen then to have been catched in the Trap of Ambition or Titles made the wrong way By which he might check the growing Factions in the House of Commons and destroy their pretended Soveraignity Tax and Rack the estates of all men and more then a Grand Seignior or Turk ever durst adventure upon Command as he should please the Bodies and Souls of the people take away every Surculus or little Sprigs that might grow out of the remaining Sap of that mighty Tree and every thing that might either contribute to it or remain but as Reliques of the Regal Estate and peoples happiness did by an Ordinance as he called it of himself and his Council the 12 th of April 1654. not only ordain an Union betwixt the two Kingdoms but that all the Nation of Scotland should be discharged of all Fealty Homage and Allegiance which is or should be pretended to be due to his Majesty that now is and that neither he nor any of his Royal Brothers or any deriving from the late King should hold Name Title and Dignity of King of Scotland and that all Herritors Proprietors and Possessors of Lands in Scotland should hold their Lands of their respective Lords by and under their accustomed yearly Boones and Annual services without rendring any Duty or Vassallage and discharged them of all military services and well knowing that their old Customes being taken away the Court-Barons would also fail did by another Ordinance erect new Court-Barons for them And having made store of Slaves in that Kingdome made all the hast he could to compleat his wickednesse in this and did the 17 th day of September 1656. procure his houses of Parliament or good will and pleasure rather to doe as much for England and take away all Tenures in Capite by Knight service and all Homages and Reliefs not only do all he could to destroy the heirs thereof but cut the Nerves let out the blood of a most noble antient Monarchy But if there could be any hopes in the Exchange of those