tenendi Parliamentum so beleived to be true that King John caused it when he sent our English Laws into Ireland to be exemplified and sent thither under the Great Seal of England it is said that every Earldom consisteth of 21 Knights Fees and every Barony of 13 Knights Fees and a third part of a Knights Fee and were of such a value and esteem as they were wont heretofore to bring Actions and Assizes for them and their Homage and Services And so litle lesse in France as the wealth of that great and populous Kingdom is not as may be rationally supposed enough to purchase of the Nobility and Gentry of that Kingdom the transmutation of their Fiefs nobles into the Roturier or Feifs ignobles nor are the Princes or Nobility of Germany likely to be perswaded out of their antient Rights and Tenures into that of the Boors or common sort of People The Nobility and Gentry of England when their Military Tenures and Dependencies shall be taken from them will not upon necessities of War and Danger according to the Tenures of their Lands their Homages and Oaths of Allegiance and their natural and legal Allegiance be able to succour or heâ—p their Prince and Father of their Country their Defender and Common Parent as they have heretofore done when as they stoutly and valiantly helped to guard their Standard and Lions but for want of those which held Lands of them and the Tenures by Knight service will be forced to abide with Gilead beyond Jordan and not be able to imitate their noble Ancestors nor each or any of them bring to his Service three Bannerets sixty one Knights and one hundred fifty four Archers on Horseback as Thomas de Bello campo Earl of Warwick did to E. 3. in anno 21. of his Raign at the Seige of Caleis or as the Earl of Kildare did to King E. 3. in the 25 th year of his Raign when he besieged Calice when he brought one Banneret six Knights thirty Esquires nineteen Hoblers twenty four Archers on Horseback and thirty two Archers on foot It will take away the subjection of the Bishop of the Isle of Man who holdeth of the Earl of Derby as King of the Isle of Man and not of the King of England and therefore cometh not to Parliament Take away from the King Nobility and Gentry who have Lands holden by Knight service all Escheats of such as die without Heirs or forfeit or be convicted of Felony and the Kings Annum diem vastum year day and wast where the Lands are holden of Mesne Lords the Escheats of those that held of Kings imediately being so considerable as the Castle of Barnard in Cumberland and the Counties of Northumberland and Huntington which the Kings of Scotland sometimes held of England came again to the Crown by them and the power which King Edward 1. had to make Baliol King of Scots and to determine the competition for that Kingdom was by reason it was held of him the Earldoms of Flanders and Artois were seised by Francis the 1. as forfeited being Fiefs of the Crown of France Flanders and many other Provinces forced to submit themselves upon some controversies to the Umpirage of France of whom they held Enervate at least if not spoil our original first Magna Charta which was grante by H. 3. tenendum de se heredibus suis and all our Liberties and the many after confirmations of that Magna Charta will be to seek for a support if it shall be turned into Socage the Libâ—rties also of the City of London all other antient Cities and Boroughs and such as antiently and before 9 H. 3. did use to send Burgesses unto Parliament Alter if not destroy the Charter of K. R. 1. granted to the City of London for their Hustings Court to be free of Toll Lastage through all England and all Sea-Ports with many other Priviledges which were granted to be held of the King and his Heirs and the same with many other immunities granted confirmed by King John with a Tenure reserved to him and his Heirs for where no Tenure is reserved nor expressed though it should be said absque aliquo inde reddendo it shall be intended for the King and the Law will create a new Tenure by Knight service in Capite A Socage Tenure for Cities and Boroughs which have no Ploughs or intermedle not with Husbandry will be improper when as there is not any fictio juris or supposition â—in Law which doth not sequi rationem so follow reason or allude unto it as to preserve the reason or cause which it either doth or would signify but doth not suppose things improper or which are either Heterogeneous or quite contrary Put into fresh disputes the question of precedency betwixt Spain England which being much insisted upon by the Spaniard at the treaty of peace betwixt the two Kingdoms in anno 42. of Q. Eliz. at Calice occasioned by the contests of the Embassadour of Spain and Sir Henry Nevil Embassadour for England it was argued or adjudged that England besides the arguments urged on its behalf viz. Antiquity of Christian Religion more authority Ecclesiastical more absolute authority Political eminency of royal dignity and Nobility of blood ought to have precedency in regard that it was Superiour to the Kingdoms of Scotland and Ireland and the Isle of Man which held of iâ— that Spain had no Kingdom held in Fee of it but was it self Feudatory to France and inthral'd by oath of Subjection to Charles the fifth King of France in anno 1369. holds a great part of the Netherlands of France Arragon both the Indies Sicily Granado and Navarre Sardinia Corsica and the Canary Islands of the Pope Portugal payeth an annual Tribute to him and Naples yearly presents him with a white Spanish Genner and a certain Tribute Lessen and take away the honour of the King in having the principality of Wales Kingdom of Ireland Isle of Man Isles of Wight Gernesey and Jersey holding of England as their Superiour in Capite Enervate or ruine the Counties Palatine of Chester Lancaster Durham and Isle of Ely if the Tenures should be Levelled into Socage Very much damnifie all the Nobility and Gentry of England who hold as they have antiently divers Mannors and Lands or Offices by grand Serjeanty as for the Earls of Chester which belongeth to the Princes of Wales and the eldest Son of the King to carry before the King at his Coronation the Sword called Curtana to be Earl Marshal of England and to lead the Kings Host to be Lord great Chamberlain of England which is claimed by the Earl of Oxford to carry the Sword called Lancaster before the King at his Coronation due to the Earl of Derby as Kings of the Isle of Man to be grand Faulconner or Master of the Hawks claimed by the Earl of Carnarvon and the Kings Champion at his Coronation claimed
as an Escheat annexed to the Crown of England And as litle when any held of the King in Capite by some other Service and not in Chivalry and by Knight Service as the Town of Shrewsbury to cause 12 Towns-men apud Angliae Reges excubare cum in illa urbe agerent To watch and ward about the Kings Person which the affrighted Cromwel with his guilty and terrified Conscience would have been well content with totidemque concomitare cum venatum prodirent and as many to attend him whilst he rode on hunting Or when Richard Pigot of Stanford in the County of Hereford or his Ancestors had two Yard Land given him there by the King to hold in Capite per servitium conducendi Thesaurum Domini Regis which Sir Edward Coke calleth Firmamentum pacis et robur Belli the Foundation of Peace and strength of War de Hereford usque ad London quotiescunque opus fueries sumptibus Domini Regis et in redeundo sumptibus suis propriis et etiam summonendi Episcopium Hereford ad portas Manerij dicti Episcopi de Bromyard si contingat Dominum Regem praedictum Episcopum implacitare By the Service of conducting the Kings Treasure from Hereford to London as oft as there should be occasion at the Kings charge in going thither and at his own in his retorn and to summon the Bishop of Hereford at the Gates or door of his Manour of Bromyard when it should happen that the King should implead him Never troubled the heart of Roger the Kings Taylor when the King gave him a good quantity of Land in Halingbury in the County of Essex tenendum per Serjeantiam solvendi ad Scaccarium Domini Regis unum Acum argenteum quolibet anno in crasâ—ino Sancti Martini To hold the Serjeanty of paying yearly at the Exchequer upon the morrow of St. Martin a silver Needle Nor did the Donees or those who had those Lands of so free a gift or bounty esteem them to be any burden could it be heavy or troublesome to their Heirs or those that should succeed them in those Lands whenas our Kings did successively give away so great a part of the Lands of England as were holden in Capite and by Knight Service either to follow or serve them in the Wars for their own defence as well as theirs or for their attendance whâ—rein they received more honour than their Princes gained by it at their Coronations or other great Solemnities by grand Serjeanty or by petit Serjeanty to present them at some times of the year with a Rose or a Hawk or a pair of Spurs or an Arrow to keep them a Hawk or Hounds provide necessaries in their Progresse for their houshold Expences Sumpter Horses in their Journey to some particular place Straw for their Bed and Rushes for their Chamber as if they gave away all to receive almost nothing for it and so willingly as be put themselves to some trouble to devise what kind of grateful acknowledgments should be made them in a perpetuity or as far as they could reach to a supposed or hoped for Eternity that many of their Tenures where there were not necessaryes in war or peace reserved do seem to be but so far for pleasure and merryment as they did not care what was reserved so it was but something as to hold the Kings head at Sea when he should sail betwixt Dover and VVhitsand or hold the Cord by which the Sail was tyed when the Queen not to shoot with Guns and Canons as some of the Covenanters for the late Kings good could find the way to do at his deer Wife the Queen Mother that now is should pass the Seas into France cum multis aliis with many other sortes and kinds not here to be enumerated without the trouble of a volume which those honester times having a better opinion of gratitude and not thinking it to be so crazy or mortal as now every one finds it to be did liberally create and bestow No wrong was done to them that had Lands given to them and their Heirs by a Mesne Lord before the Statute of Quia emptores terrarum as our forefathers the Saxons long before the Conquest believed when as Byrhtrick a Saxon of great note and eminency in Kent holding Lands of Aelsrick a Mesne Lord did by his last will and testament in the first place give to his natural Lord a Bracelet of fourscore marks of Gold one Hatchet of half as much four Horses two of them trapped two Swords trimmed two Hawks and all his Hounds and to the Lady his wife one Bracelet of thirty marks of Gold and one Horse to intreat that his Testament wherein he devised great quantities of land to divers persons and to charitable uses and the Lords consent was very necessary stand may and prayed his dear leefe Lord that he do not suffer that any man his Testament do turn aside Nor to the County of Hertford or places adjacent when Leofranus Abbot of St. Albans gave in Edward the Confessors reign unto Turnot Waldef and Thurman three Knights the Mannor of Flamsteed in the County of Hertford to be holden by the service ut regionem vicinam contra latrones defendâ—rent to the end that they should defend the neighbour-hood against Thieves And no hurt to the Common-wealth when as the Nobility and great men of England imitating the bounty and munificence of their Kings and Princes for the enabling themselves to serve their King Country did bountifully give much of their own Estates Demesâ—s to divers of their friends followers to hold of them by Knight service or some honourable seldom services about their Persons or Estates As the Earls of Oxford Arundel Norfolk Hereford Essex Hertford Gloucester Leicester Chester Lancaster Northumberland other antient Earls did when they severally gave to those who had so litle wrong done them by their kindness as they have for many ages and doe yet continue men of worship and great estates in their Counties as many as 100 Knights fees many times more and seldome less to be holden of them by Knight service which at the now value of Lands reckoning every Knights fee as Sr. Edward Cooke doth if at 100 l. per annum which is the lowest value would be 10000 l. per annum at 200 l. per an which is the most probable medium rate will amount unto no less than 20000 l. per annum That Harden Castle in Cheshire with the lands thereunto belonging of a great yearly value in the County of Chester was given by an Earl of Chester to be holden of the Earl and his heirs per senescalciam comitum Cestriae by the service of being Stewards to the Earls of Chester Or that the Castle and Mannor of Tunbridge and the Mannors of Vielston Horsmund Melyton and Pettis in the County of Kent were holden by Richard de Clare Earl of Gloucester and Hertford of
detruncatione vel alijs modis juxtâ— quantitatem delicti puniat To be an Hangman or Executioner of such as were condemned to suffer death or any loss of Members according to the nature of their offences could neither be parted with or taken to be any thing but a benefit And that a claim was made by one thâ—â— held Lands in the Isle of Silly to be the Exeâ—cutioner of Felons which there was then usualy done by letting every one of them down in a Basket from a steâ—p Rock with the provision only of two Loaves of Barly bread and a pot of water to expect as they hung the mercy of the Sea when the Tide should bring it in And that those which held by the easy and no dishonourable Tenures of being Tenants in Capite and Knightâ—service should as Mr. Robert Hill a learned and judicious Antiquary in the beginning of the Reign of King James well observeth rack and lease their Lands to their under Tenants at the highest Rents and Râ—tes and neither they nor their Tenants call that a slavery which though none at all may seem to be a far greater burden than any Tenâ—nt in Capite and by Knight service which holdeth of the King or any Tenant that holdeth by knight service of a mesne Lord endureth when as the one is always more like to have the bag and burden which he must pay for laid upon him in his Bargain then the other who is only to welcom a gift or favour for which he payeth but a grateful acknowledgment Nor is there in that which is now so much complained of and supposed to be a Grievance which whatever it be except that which may as to some particular cases happen to the best and most refined Constitutions and the management thereof hath only been by the fault of some people who to be unfaithful and deceive the King in his Wardships or other Duties have some times cast themselves into the trouble and extremityes which were justly put upon them for concealments of Wardships or making fraudulent conveyances to defeat the just Rights of the King or their superiour Lords or by some exorbitances or multiplications of Fees since the erecting of the Court of Wards and Liveries by an Act of Parliament in 32 H. 8. any malum in se original innate or intrinsecal cause of evil or inconvenience in them Active or Prâ—xime meerly arising from the Nature or Constitution of Tenures in Capite and Knight Service To be found upon the most severe examinations and inquiries which may be made of them nor are they so large in their number as to extend or spread themselves into an universality of grievances nor were or are any publick or extraordinary Grievance CHAP. III. Tenures of Lands in Capite and by Knight service are not so many in number as is supposed nor were or are any publick or general grievance FOr the Number of Knights Fees which were holden in Capite and by Knight service of the King have by tract of time Alienations Purprestures Assarts incroachments deafforrestations and concealments been exceedingly lessened and decreased 28015 which were said to be parcel of the 60215 knights Fees created by William the Conquerour being granted afterwards by him or his successors to Monasteries Abbyes Priories and religious houses or parcelled into Glebes or other endowments belonging to Cathedrals Churches and Chantries or given away in Mortmain and very many quillets and parcels of Land after the dissolution of the Abbyes and religious houses not exceeding the yearly value of forty shillings And now far exceeding that value granted in Socage by King Henry the eighth besides many other great quantities of dissolved Abbyes and religious Lands granted to be holden in Socage Much of the Abbye Lands retained in the Crown or Kings hands as part of the Royal Patrimony and many Mannors and great quantities of Land granted to divers of the Nobility gentry and others with reservations many times of Tenures of but half a knights Fee when that which was granted would after the old rate or proportion of knights Fees have been three or four knights Fees or more and somtimes as much or more then that no rule at all as touching the proportions of Lands or Tenures being then in such an abundance of Land and Revenue as by the dissolution of the Abbyeâ— came into the Kings hands or disposing 〈◊〉 all kept which might have made many knights Fees were not seldom granted with a Tenure only of a twentieth or fortieth and sometimes an hundreth part of a knights Fee whereby the knights Fees which were granted to the Religious houses being almost half of the number which William the Conquerour is said at the first to have created might well decrease into a smaller number and many of those which diverse of the Nobility and great men held of the King as those of Ferrers Earl of Darby and the Earls of Chester those that came by marriage as by one of the Daughters and Heirs of 〈◊〉 Earl of Hereford and Essex by escheat as the Earldome of Clare or by Resumptions Dissolution of Priors Alienâ— Knights of St. John of Hierusalem Attainders Escheats or Forfeitures which in the Barons Wars were very many or holden as of honors c. Merging and devolving into the Royal Revenue did take of very many of the number especially since the making of the Act of Parliament in 1 â— 6. cap. 4. that there should be no Tenure in Capite of the King by reason of Lands coming to the hands of him or any of his Progenitors Heirs or Successors by Attainders of Treason misprision of Treason Premunires dissolution or surrender of Religious Houses And not a few of the Mesne Lords and those which held also of the King did make as great an abatement in their Tenures by releasing and discharging their services before the making of the Statute of Quia emptores terrarum granting Lands in Socage Franck Almoigne or by copy of Court Roll and casting out a great part of their Lands as well as the Kings of England did not Forrests Chases many vast Commons which they laid out in Charity for the good of the poorer sort of people infranchising of a great number of Copyholders selling giving away many and great parcels of their demesne Lands disparking of many of their Parks deviding them into many Tenements to be holden in Socage endowing of Churches Chantries religious houses the like the forrests Chases and Commons of the Kingdom making very near a tenth part in ten of the Lands of the Kingdom and the Socage Lands Burgage Franck Almoigne and Copyholds more than two parts in three of all the remainder of the Lands of the Kingdom So as it is not therefore improbable but that there are now not above ten thousand or at most a fourth part of those 62015. Knights Fees to be found And that in antient and former times either by reason that great quantities of Mannors and
themselves for their Allegiance to their King following of the Scripture their Consciences and the known Laws of the Land were notwithstanding their many Petitions and Importunities several years whilst their estates were Sequestred and taken from them kept in a starving Condition before they could be heard to litle purpose where Sons and too well descended to be so unworthy were invited to accuse their Loyal Aged Parents whom the Jewes would have rent their Clothes to have seen encouraged and made to be sharers in the spoyl of their Father Not like the Committee or Court improperly called at Salters-Hall for relief of Creditors against their imprisoned Debtors where some of those Judges and Committees if not wronged by printed Complaints were in good hopes to have made some preparations to sell the Debtors Lands to their Friends or Kindred at good Penniworths Nor like the Committee for Plundring rather than Plundred Ministers who to take away all the Benefices of England and Wales from the Tribe of Levi and confer them upon the Tribe of Issachar and their Factious and Mechanique guifted Brethren and keep out the Orthodox and learned Clergy could make their costly orders for the trial of them that were more Learned then themselves concerning the Grace of God and their utterance for Preaching of the Gospel with private and deceitful marks and litle close couched or interposed Letters hid or put under or over some other Letters whereby to intimate to their Subcommittees in the Countries that howsoever the men were without exception and found to be so upon Certificates and Examination they were to be delayed and sent from Post to Pillar and tired boâ—h in their Bodies and Purses and be sure never to be instituted and inducted But was a Court compos'd of grave learned knowing and worthy Masters of the Wards such as William Marquesse of Winchester William Lord Burghley and his Son the Earl of Salisbury and many other who made not the Court or any of the businesse thereof to Lacquy after their own Interest Had for Attorney Generalls of that Court who sate as men of Law and Judges therein and assistants to the Masters of the Wards Richard Onslow Esq afterwards Speaker of the House of Commons Sr. Nicholas Bacon Knight afterwards a most learned Lord keeper of the great Seal of England and a great Councellor of Estate to Queen Elizabeth Sr. Henry Hobart afterwards Lord cheif Justice of the Court of Common-pleas Sr. James Ley Knight and Baronet afterwards Lord cheif Justice of the Court of Kings Bench after that Earl of Marleborough and Lord Treasurer of England Sr. Henry Calthrop Knight Sr. Rowland Wandesford Knight and Sr. Orlando Bridgeman Kt. now Lord Chief Justice of the Court of Common pleas all very eminently learned Lawyers and of great estates honour honesty and worth in their several generations who upon any difficult or weighty matter of Law to be discussed in that Court did usually intreat the presence and had the assistance of the Lord cheif Justices Lord cheif Baron or of any of the other learned Judges of the Land whom they should please to invite unto them where a variety of learning grave deliberations a great care of Justice and right reason most lively and clearly represented have left to posterity as guides and directions for after ages those conclusions and resolutions of cases of great learning and weight in that Court reported by the Lord Dier Cook and other learned Sages of the Law Nor were the Masters of the Wards Attorneys Auditors or Escheators loosely tied by Oaths as some of the Committee Jurisdictions were when they did swear only in general faithfully according to their best skill and knowledge to discharge the trust committed to them and would not for favour or affection reward or gift or hopes of reward or gift break the same Or as little restraining them from Acts of Oppression or Injustice as the Oath of the Controlers for the sale of the Kings and Queens lands ordered by that which called it self a Parliament 17. July 1649. The Oath of the Commissioners for managing the estates of Delinquents Sequestrations at Haberdashers-Hall Ordered by no better an Authority the 15 of April 1650. or that which by that which would be called an Act of Parliament of the 10 of December 1650. for establishing an high Court of Justice within the Counties of Norfforlk Suffolk Cambridge and Huntington for the Tryal of Delinquents was only ordered was to be taken by those that were to be the Judges that they should well and truly according to the best of their skill and knowledge execute the several powers given unto them Which bound them not from doing wrong to those whom they made to bear the burdens of all the cruelties which they could possibly lay upon them But were compassed and hedged in by Oaths as warily restraining as they were legal for the Master of the Wards was by Act of Parliament enjoyned to swear to minister Justice to Rich ond Poor to the best of his cunning and power to take no gift or reward in any Case depending before him and to deliver with speed such as shall have to do before him The Attorney was sworn truely to counsel the King and the Master of the Court and with all speed and diligence to endeavour the hearing and determination indifferently of such matters and causes as shall depend before the Master of the Wards and shall not take any gift or reward in any matter or cause depending in the same Court The Auditors sworn to make a true allowance in their Offices to every person which shall be accomptant before them and not to take or recieve of Poor or Rich any gift or reward in any matter or cause depending or to be discussed in the Court but such as shall be ordinarily appertaining to their Offices and the Escheators to treat all the people in their â—ayliwicks truely and righteously to do right to every man aswell to poor as to rich do no wrong to any man neither for promise love nor hate nor no mans right disturb do nothing whereby right may be disturbed letted or delayed and shall take their Enquests in open places and not privy And might better content the people Then when in former ages the Wardships and their disposing were left to the care and order of the Chancellour as to Thomas Bâ—cket in H. 2. time or to Hubert de Burgh Chief-Justice and Earl of Kent in the Reign of H. 3. sometimes to the Treasurers or Chamberlains most comonly let to farm by Escheators sometimes by under-Sherifs or when the next Wardships or Escheats that should happen were before hand assigned towards the payment of some of the Kings Debts as to William de Valence Earl of Pembroke in the Reign of E. 1. or that the Wardships and Escheats which should happen in 6 or 7. Counties were before hand granted to some particular man And can
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
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
or by reason of any such Tenures Wardship Primer seisin or Oustre les maines be taken away from the said 24 th day of February 1645. though notwithstanding this pretended Act he could for his own profit continue and take the Fines upon Alienations And that all Homages Licences Seisures Pardons for Alienations incident or arising for or by reason of Wardship Livery Primer seisin or Oustre le maines and all other charges incident thereunto be likewise according to the new mode of making retrospective Acts of Parliament taken away from the said 24 th day of February 1645. And that all Tenures in Capite and by Knights service of the late King or any other person when as the Parliament that made the Ordinance for taking away Tenures in Capite and by Knight Service did as was said promise that all the mesne Lords and others which held of the King and had others held of them should be recompenced for the loss of their Tenures and all Tenures by Socage in cheif to be taken away and turned from the said four and twentieth day of February 1645. into free and common Socage Whereby in all probability he did but cause those Tenures in Capite and Knight service to be put down to the end that he might take them up again at his pleasure when he should have finished his wisht and devilish designs of making himself a King over a degenerate as to the generality of the people sinful and harassed Nation or in stead of them to rule as he had begun with his Janisaries and Bashawes or Major Generals But whatever he or his over awed and flattering Assemblies would make a long often deluded Nation to believe concerning Tenures in Capite and Chivalry or that kind of fixed and constant part of the Militia It was not accompted in the holy Scripture to be any grievance to the people of Israel that Saul in the government of them had in every Tribe and of every kindred many thousands of men of War of the most valiant in a standing Militia as of the Children of Ephraim twenty thousand and eight hundred mighty men of valour famous and such were our Nobles Tenants in Capite throughout the house of their Fathers and of Zebulun such as went forth to Battle expert in war and were not of double heart fifty thousand or that of the Children of Benjamin the greatest part of three thousand kept the Ward of Sauls house Or that David a King after Gods own heart did appoint the Chief Fathers and Captains of thousands and hundreds and their Officers that served the King in any matter of the Courses which came in and went out Month by Month throughout all the Months of the year and of every Course twenty and four thousand which were as our Knights Fees or Tenures in Chivalry out of a select or more refined and fit part of the People whose Estates as well as their Persons made them lyable unto it for the general Musters or trained Bands did by many hundred thousands exceeding that number which were only as a Landguard or ready help and defence upon all emâ—rgencyes although it be not there said that they held their Lands by that or any military Service yet a great resemblance and affinity may be discerned betwixt that and the cause reason of Tenures in Capite which amongst that people was lesse requisite necessary for that they being alwayes Marshald under Captains of Thousands Hundreds Fifties Tens were by some not expressed Tye or Obligation or their grand Obedience to the command of their Kings and Princes which by a set Law of the Almighties own enacting in all matters as well military as civil had no lesse a punishment than Death affixed to the Transgressors thereof always ready to go up to battle with their King against any neighbour Nation or others that did them injury and leaves but this only difference betwixt our Tenures in Capite and by Knight Service and if they were not then in use amongst them their fixed provisions for wars offensive or defensive that theirs was a continual charge upon so many of the people in every year by turns or courses and ours upon the Princes Nobles and many of the Gentry and better part of the people for all of the Gentry had not the happiness to have Lands originally given them to hold by such kind of Tenures or did not afterwards purchase them of the first proprietors of those beneficiary and noble kind of Tenures when wars should happen which being not often or might not perhaps be commonly once in forty or more years were not then also called out to War themselves but when the King went in person or sent his Lieutenant and then were to tarry with him or send one in their stead at their own charges but for forty dayes No wrong was done by Solomon to the people of Israel when he made the people that were left of the Hittites Amorites Perezites Hevites and the Jebusites and their Children which were not of Israel to pay Taxes and doe publique work And the Children of Israel no Servants for his work but men of war and chief of his Captains of his Chariots and Horsemen Jehoshaphat did not any evil in the fight of the Lord when as notwithstanding that the Fear of the Lord had fallen upon all the Kingdoms of the Lands that were round about Judah so that they made no War against him and the Philistines the old Enemies of Judah and Israel brought him presents and Tribute Silver and he waxed exceedingly great and built in Judah Castles and Cities of Store placed Forces in all the fenced Cities of Judah set Garrisons in the Land of Judah he understood it whilst the Lord was with him he walked in the first ways of his Father David to be a Salus Populi to have the men of War mighty men of valour in Jerusalem eleaven hundred and threescore thousand men which waited upon the Kings besides those whom he put in the fenced Cities It was no Imposition upon the people of Israel neither is it in holy Writ made to be any Error in Government that Saul whom our Kings Nobility in the Creation of military Tenures did but imitate when he saw any strong man or any valiant man took him unto him Or that David after he was King hearing of the fame of the Hebronites sought for them and when there were found among them at Jazer of Gilead Jerijah the chief and two thousand and seven hundred mighty men of valour made them Rulers over the Reubenites and it seems were also but of some part of them for that in the next Chapter the Ruler whom he appointed over the Reubenites the Gadites and the half Tribe of Manasseth was Eliezer the son of Zichri over the half Tribe of Manasseth in Gilead Iddo the Son of Zechariah Nor did Nehemiah that great and good
example of Magistracy put any grievance upon the people when as in the re-building of Ierusalem and to repell the Enemies and hinderers thereof there being as much necessity to defend a City or Commonwealth after it is built or established as it can be in the building framing or repairing of it he ordered the one half of the servants to work and the other to hold the Spears the shields Bows and Habergeons and every one of the builders had his Sword girded by his side and the Nobles were appointed when the Trumpeter should sound that stood by Nehemiah because they were separated one from another to resort thither unto him upon occasion of â—ight or danger and did after their work finished cause the Rulers of the people to dwell at Jerusalem and out of the rest of the people by lot to bring one of every Tribe to inhabit and dwell in there such as were valiant or mighty men of valour and had for overseers the principal and most eminent men and Zabdiel the Son of one of the mighty men David did not turn aside from God nor bind heavy burdens upon the people because he had mighty men about him and that Joshebbassebet the Tachmonite sate like a Constable or Marshal of England chief amongst the Captains nor did Solomon bruise the broken Reeds because he had many Princes and great Officers under him as Benajah the Son of Jehoiada who served his Father David and was Captain over his Guard was over the Host Azariah the Son of Nathan over the Officers like as in England a Lord great Chamberlain or Lord Chamberlain of the Kings Houshold Zabud the Son of Nathan Principal Officer and Aâ—ishar as a Treasurer or Comptrouler over the Houshold none of which could take it for any injury to enjoy those great Offices and places during the Kings pleasure but would have esteemed it to have been a greater favour if they had a grant for life and most of all and not to be complained of to have it to them and to their Heirs or after Generations for that all good things and blessings by a natural propension and custom amongst the Sons of men are very desireable to be continued and transmitted to posterity and the sacred Volumes have told us that it is a reward of wisdom and vertue to stand before Princes Nor was it any dishonour to the men of Judah and people of Israel that the Queen of Sheba wondring even to astonishment at the Attendance of Solomons Servants and Ministers and his Cup bearers or Butlers as the Margin reads it pronounced them happy that stood continually before him Or to the Subjects of Ahasuerus who reigned from India to Ethiopia over an hundred and seventeen Provinces that besides his seven Chamberlains or Officers of honour he had the seven Princes of Persia and Media which saw the Kings face and sate the first in the Kingdom Nor any to our heretofore happy Nation enjoying in a long Series and tract of time an envied peace and plenty under famous and glorious Kings and Princes that they did give Places Castles Mannors and Lands of great yearly values to certain great and well-deserving men and their Heirs to serve in great Imployments Solemnities and Managements of State-affairs to the honour of their Soveraigns and the good safety of the People in the Offices of great Chamberlain high Steward Constable or Marshal of England chief Butler of England and the like For when the guift of the Land it self was a great kindness it must needs be a greater to have an honourable Office Imployment annexed to it that an act of bounty done by a Prince in giving the Land should oblige the claim or receiving a far greater in the executing of that Office or Attendance which belonged to it And could have nothing of affinity to a burden when as besides the original guift of the Lands which were very considerable and to be valued many of those personal services by grand Serjeanty were not unprofitable or without the addition or accession of other Bounties and Priviledges as the guift to the Lord great Chamberlain of forty yards of Crimson Velvet for his Robes upon the Coronation day the Bed and furniture that the King lay in the night before the silver Bason and Ewer when he washed his hands with the Towels and Linnens c. The Earl Marshal to have the granting of the Marshals and Ushers in the Courts of Exchecquer and Common Pleas with many other guifts and Priviledges and Dymock who holds some of his Lands by the service of being the Kings Champion and to come upon the Coronation day into Westminster-Hall on Horse-back compleatly armed and defie or bid battel to any that shall deny him to be rightful King of England is to have the Kings best Horse and were not in the least any charge to the people or laid upon them as Cromwel did the stipends of his mock Lords or Officers of his imaginary Magnificence to be paid out of the publick Purse or Taxes as were the self created Lords of his Counsel who had 1000 l. per an for advising him how to fool the people build up himself by the wickedness of some and ruines of all the rest or as the Lord so called Pickering or Chamberlain of his Houshold and the quondam would be Lord Philip Jones who was called the Comptrouler of his Household had to buy them white staves to cause the people to make way and gape upon them No Prejudice to the Common-wealth that the Beauchamps Earls of Warwick did hold Land by right of inheritance to be Panterer at the Kings Coronation and to bear the 3 Sword before him the Duke of Lancaster before that Dutchy came again into the possession of the Kings of England to bear before him the sword called Curtana or the Earls of Derby as Kings of the Isle of Man to bear before the King at his Coronation the Sword called Lancaster which Henry the 4 th did wear when he returned from exile into England or for the Earl of Arundel to be chief Butler of England the day of the Coronation No disfranchisement to the City of London that some Citizens of London chosen forth by the City served in the Hall at the Kings Coronation assistants to the Lord chief Butler whilst the King sits at Dinner the day of his Coronation and when he enters into his Chamber after Dinner and calls for Wine the Lord Mayor of London is to bring him a Cup of Gold with Wine and have the Cup afterwards given to him together with the Cup that containes water to allay the Wine and that after the King hath drunck the said Lord Mayor and the Aldermen of London are to have their Table to Dine at on the left hand of the King in the Hall Or to the Barons of the Cinque Ports who claim are allowed to bear at the Kings Coronation a Canopy â—f cloth
the Arch-Bishop of Canterbury by agreement and composition made betwixt the said Earl and Boniface Arch-Bishop of Canterbury in the raign of King H. 3. by the service of four Knights Fees and to be high Stewards and high Butlers to the Arch-Bishops of that See at their Consecration taking for their service in the Stewardship seven competent Robes of Scarlet thirty gallons of Wine thirty pound of Wax for his light livery of Hay and Oates for eighty Horse for two nights the Dishes and Salt which should stand before the Arch-Bishop in that Feast and at their departure the dyet of three dayes at the cost of the Arch-Bishop at four of his then next Mannors wheresover they would So that the said Earls repaired thither but with fifty Horse and taking also for the Office of Butlership other seven like Robes twenty gallons of Wine fifty pound of Wax like livery for sixty Horses for two nights the Cup wherewith the Arch-Bishop should be served all the empty Hogsheads of Drink and for six Tun of Wine so many as should be drunk under the Bar all which services were accordingly performed by Gilbert de Clare Earl of Gloucester and Hertford at the Inâ—hronization of Robert Winchelsey Arch-Bishop of Canterbury and by the same Earl to Arch-Bishop Reignolds by Hugh Audley afterwards Earl of Gloucester to John Stratford Arch-Bishop of Canterbury by the Earl of Stafford to whom the Lordship of Tunbridge at length came to Simon Sudbury Arch-Bishop of that See and by Edward Duke of Buckingham to William Warham Arch-Bishop of Canterbury and executed the Stewardship in his own person and the Butlership by his Deputy Sr. Thomas Burgher Knight No disparagement to the Knightly family of the Mordants in the County of Essex that they hold the Mannor of Winslowes in Hempsteed in the said County of the Earls of Oxford by the service of a Knights Fee and to be his Champion and to come to the Castle of Hedingbam the day of the Earls mariage riding in compleat harness to Defie or bid Battel to any that should deny him to be Earl of Oxford and to see what order was kept in the Hall there which Robert Mordant Esq performed in his own person the 14 th day of December in the 14 th year of the raign of Queen Eliz. being the day of Edward Earl of Oxford's marriage though it was not there solemnized Or to Sr. Giles Allington the Auncestor of the now Lord Allington to hold his Mannors called Carbonnels and Lymberies in Horsed in the County of Cambridge by the service of a Knights Fee and a half and to attend upon the Earl the day of his marriage and to hold his stirrop when he goeth to horseback which service he performed in person at White-Hall the 14 th day of December in the 14 th year of the raign of Queen Eliz. being the marriage day of the said Edward Earl of Oxford in the presence of the Earls of Bedford Huntington and Leicester the Lord William Howard Lord Chamberlain of the Queens houshold and the Lord Burleigh c. Those Dreams or Fancies of Grievances by Tenures in Capite and Knight Service were never presented in those thousands of Court Leets or Law daies which twice in every year now for almost 600 years since the Conquest and very long before made it a great part of their businesse to enquire upon oath of Grievances Extortions and Oppressions Nor in those yearly grand enquests to the like purpose which have been twice in every year for many hundreds of years past by the oath of the most sufficient Knights Gentlemen and Free-holders of the County of Middlesex It neither was nor is nor can by any reasonable intendment be taken to be a grieveance to do or perform that which by the Laws of God Nature and Nations the Laws reasonable Customs and the fundamental Laws of England hath so often and through all times and ages and the memory of man and Records which are monumenta veritatis vetustatis ever been allowed repeated and confirmed in Parliament without the least of any contradiction or repeal and is but upon necessity and occasion to defend the King themselves their Country Friends and Neighbours and to do that which every Gentleman and such as are e meliori Luto of the more refined Clay and better born bred than the vulgus or common sort of people would be willing to do as that learned French Lawyer Bâ—issonius well observeth Qu' en la necessite de guerre toutes lâ—s gentilz hommes sont tenus de prendre les Aâ—mes pâ—ur la necessite du Roy That in necessity of War every Gentleman is bound to take Arms and go to the Wars for the defence of the King which by our Laws of England is so to be encouraged as it is Treason to kill any man that goeth to aid the King in his Wars and is no more than what the Oaths of Allegiance and Supremacy doth bind every Englishman unto though they should tarry in the Camp more than forty days or not have Escuage or any allowance of their charges from their own Tenants and is but that duty which Deborah and Baruch believed that every Subject was bound to perform when they cursed Meroz not as some of our Pulpit Incendiaries did when they traiterously inverted the Text to encourage the people to fight against their King in that they came not forth to battel to help the Lord against the mighty and the loyal Uriah would not forget when the King himself could not perswade him to go into his own House to eat and to drink and lye with his Wife when the Ark and Judah and Israel abide in Tents and his Lord Joab and the Servants of his Lord were incamped in the open field and which the good old Barzillai in the rebellion of Absolom against his King and Father David thought was incumbent upon him when he could not bring his loyal mind to think it to be enough to provide the King of sustenance while he lay at Mahanami unlesse when he himself was fourscore years old and could not taste what he eat or drank he also should come down from Rogelim and go as he did with his Son Chimham over Jordan with the King to conduct him and would not accept of the Kings offer or reward to live with him at Jerusalem which those that hold in England their Lands and goodly Revenues by those beneficial Tenures in Capite of a free guift and in perpetuity may be said to do and have more also then was offered Barzillai for the remainder of an old and worn-out life but sayes why should the King recompence it with such a reward And is but the performance of the original contracts made betwixt the kind Donors and the thankful Tenants and the observing of faith and promises which is the ingens vinculum and next unto the Divine Providence the grand support of the world
and the quiet repose and peace of all mankind makes a certainty in all their actions and leads to the Mountain of Holinesse and the Hill of eternal rest and blessednesse No grinding of the face of the poor which if it were any as it can never be evinced to be could not commonly or ordinarily be in the case of such Tenures when as those which are any way concerned in it are men of good Estates and Revenues and would be loth to be under any other notion to pay a reasonabe Escuage assessed in Parliament when they went not themselves or sent any in their stead and where their Tenants went not in person to defend their Lords as well as their King to have as much assessed upon them and by no other than a Parliament wherein the Commons of England had their Representatives of their own Election Neither were the Kings of England or the Mesne Lords in the case of those Tenures any Egiptian Task-Masters when those that held under them had such benefits and bounties of free guift and if they have been since transferred and aliened that part of it viz. the Tenures and a gratefull acknowledgement of the favour of the first givers were neither sold or paid for in the purchase but the Services were by Act and operation of Law and the Statute of Quia emptores terrarum reserved to the first Donors by an expresse Covenant in the deeds of purchase to be performed to the Lords of whom they were holden and it is a maxime in Law Quod nemo plus juris in alium transferre potest quam in ipso est that no man can grant or transferre a greater right than he hath or is in him And are if a right consideration of things shall not be as it hath been too much in the times of our late Frenzies and Distractions adjudged a premunire or committing high Treason More noble Tenures than that of Soccage by how much a rustick and Plowmans life and demeanor was ever in all ages and amongst all Nations which had any civility and understanding justly accompted to be so far inferior to the Equestris ordo Gentlemen or men of more noble imployments As that those and not the military Tenures were truly accompted to be a kind of Slavery according as they were in their original Institution before the favour obtained of the King and Mesne Lords to reduce their drudgeries to easy and small quit Rents and to be but litle better than Joshuas Gibeonites Hewers of Wood and Drawers of Water or Solomons Perezites and Jebusites to be imployed as his Servants and Work-men And as now they are or expect to be in that which they would imagine to be their better condition holding in free and common Soccage by fealty only for all services and being not to be excused from Aydes to make the Kings eldest Son a Knight or for the marriage of his Daughter or to pay a years value of their Lands and sometimes double the rent which is to be payed at the death of every Tenant and may amount to a great deal more than the ordinary low and favourable rate of five pounds for a releif for every Knights Fee 50 shillings for a half and 25 shillings for a quarter of a Knights Fee and lesser according to the smaller proportions of the Lands which they hold would in all likelyhood if they might but enjoy the antient and long agoe discontinued priveledge which the Tenures by Knight service in Capite were to enjoy by the Charter or Magna Charta of King H. 1. of not having Lands of that kind of Tenure which was in their own Demeasne charged with any other Assessements or services than what they were obliged unto by their Tenures And was no more than what was before the common Justice and right Reason of this nation be now very well content to exchange their free as they call it Socage Lands which was antiently understood to be no other than feudum ignobile et plebeium an ignoble and plebeian Fee or Estate and as Sr. Henry Spelman saith nobili opponitur et ignobilibus et rusticis competit nullo feudali privilegio ornatum et feudi nomen sub recenti seculo perperam et abusu rerum auspicatum est is opposed or contra distinguished to the more noble Tenures and being not entituled to any feudal priviledge belongs only to Ignoble and Rusticks and hath of late times improperly and by abuse gained the name of Fee for Lands holden in Capite and by Knight service So as they might be free from all assessements and charges of War under which burden the Owners of Lands holden by any kind of Tenures have for these last Twenty years heavily groaned and if Mr. Prynne had not publiquely and truly said it did muâ—â—is parasangis by many and very many degrees out goe all that was pretended to be a Grievance by the Court of Wards and Tenures in Capite and by Knight service which all things rightly considered are a more free beneficial franck and noble kind of Tenure the Mariages of the Heirs in Minority only excepted which not often happening are notwithstanding abundantly recompenced by the freenesse of the gift seldom Services and other Immunityes Then Socage which those many Tenants which hold by a certain rent of Sir Anthony Weldens Heir for Castle-Guard to the ruined Rochester Castle in Kent to pay 3 s. 4 d. nomine paenae by way of Penalty for every Tide which after the Time limited for payment shall run under Rochester Bridge and the Rent and Arrears refused though tendred the next day do not find to be the best of Tenures or so good as that of Knight Service in Capite Which is better than that which the Tenants in Cumberland and other Northern Partes do claim by a kind of inheritance and Tenant Right wherein they can be well contented to pay their Lord a thirty peny â—ine at every Alienation and a twenty peny upon the Death of an Ancestor or the death of their Lord according to the Rate of the small yearly Rent which they pay to their Lords Better then all or most kind of Estates or Tenures and better than that at will which many are well apaied with and better than those of Copyholders who if the Lords of Manours put them out of their Estates have no Remedy but by Petition to them Can have no Writ of Right-Close to command their Lords to do them Right without Delay according to the Custom of the Manour No Writ of false Judgement at the Common Law upon Judgments given in the Lords Court but to sue to the Lord by Petition nor can sue any Writ of Monstraverunt to command their Lords not to require of them other Customs or Services than they ought to do Are to pay upon their admission an uncertain Fine at the will of the Lord who if they be unreasonable the most they can be compelled unto by
any Court or Rule of Justice is a reasonable Fine commonly adjudged or estimated at two years value and either certain or uncertain are to be paid at the death or alienation of every Tenant which doe as in Socage happen more often and constantly than that of Escuage and Knight Service and have many Payments Forfeitures Restraints and Dependencyes attending that kind of Estate and Inheritance as in some places the Heir to forfeit his Land if after three Solemn Proclamations in three several Courts he comes not in payes his Fine and prayes to be admitted or shall without any reasonable cause of absence wilfully refuse to appear after summons at his Lords Court Baron or to be sworn of the homage or denie himself to be a Coppy-holder payeth not his Fine when it is assessed or sues a Replevin against his Lord distraining for Rent-service payes not his Rent or permits or commits voluntary wast by plucking down an antient built house and building up a new in the place or cutting Timber without licence may be fined or amerced if he speak unreverently of his Lord or behave himself contemptuously towards him is at his Death to pay his best beast or if he hath none the best peice of his housholdstuffe for a herriot and in some places for it varies according to several customes is to give the Lord a certain sum of mony every month during Wars to bear his charges cannot be sworn of the Homage or bring a plaint in the nature of an Assize untill he be admitted Tenant to his Land the Wife shall not have her Bench or Life in her Husbands Copyhold Estate if she marry without Licence of the Lord and in some places if she will redeem it must come riding into the Court upon a â—lack Ram or as in the manner of South Peveâ—ton in Somersetshire being an anâ—ient Dâ—mesne where a Widdow convicted of Fornication shall as an Escheat to the Lord of the Mannor forfeit all her Lands and Goods and the Tenant is by a peculiar custom in some places before he can inforce his Lord to admit any one to his Coppyhold to make a prosfâ—r thereof to the next of the blood or to his Neighbours ab orientesole inhabiting Eastward of him who giving as much as another is to have it and many more inconveniencies and unpleasing customes not here remembred which they who in the Raign of H. 3. and E. 1. Or when Bracton and Fleta wrote were but Tenants at the will of the Lord and by an accustomed and continued charity fixed and setled upon them and their Heirs are now become to be the owners of a profitable and well to be liked inheritance secundum consuetudinem manerij according to the custome of the Mannor could never by any manner of Reason or Justice require a better usage oâ— find the way to complain of untill our late horrid and irrational Confusions when Injustice accused Iustice Oppression complained of Rightâ— and the wickedest oâ— Gains was called the refined Godlinesse and when they got so much incouragement as in the height of a grand and superlative ingratitude to cry aloud and clamour against their Lords who were nothing else but their good and great Benefactors and would make as many as they could beleive that their Coppyhold Estates which were great Acts of Charity in the time of the Saxons were now nothing lesse than Norman Slaveries Are better also than Estates for lives or years which are not unless in case of a seldome happening minority which is otherwise recompenced so happy in their conditions as Tenures in Capite and by Knight Service but are more clogged and incumbred with Covenants or operation of Law then Knight Service as the Tenant to be punished with treble dammage and a forfeiture of Locum vastatum the place wasted for wast committed or permitted to be done in but cutting down an Apple tree in an Orchard or a few Willows or other Trees that grow about the House or plowing up land that was not arrable cannot Assigne his Term or make a Lease of part of it or cut down Timber of Wood without leave of his Lord is stinted to his fewel or firewood and to have so many Loads only to burn is not to carry any dung of the ground is to forfeit his Lease if he pay not his Rent if demanded at the time appointed and many times strict Nomine Penaes for every day after in which it shall be unpaid must carry so many loads of Wood or Coal every year for his Land-lord pay quarters of Wheat Rent Capons a Boar or Brawn a Mutton or fat Calf and the like renewing thereby again the old kind of Socage by their own Covenants or for their own conveniency agreeing to find so many men furnished with Pikes or Musquets in the service of their Land-lords in the time of Wars which was not long agoe done in Ireland by some Tenants of the late Lord Conway which is no lesse then a Military Tenure Wardships and Marriage only expected And whether for lives or years doe live under as many other harsh and uncomfortable Covenants and Conditions as the warinesse distrust or griping of their Land-lords will put or enforce upon them which he that hath not the property of the Land which he renteth and knows it to be none of his own is to endure the more patiently because if he will not take it or hold it so another will be glad to do it and that Covenants and Obligations which were at first but voluntatis at the Tenants will and pleasure before they were entered into do afterwards as the Civil Law saith become to be necessitatis and cannot be avoyded So as Tenures in Capite and Knight service being more beneficial and most commonly less troublesome and incumbred than either Socage or Copyhold Tenures or Estates for lives or years which are more than two parts of three of the Lands of the Kingdom and are yet well enough endured purchased and daily sought for and when all is said that can be truly and rationally alleadged for any good that is in them that in Capite and by Knight service being the most noble and best of Tenures will weigh heavier in the ballance of any reasonable impartial or knowing mans understanding it cannot be imagined from which of the many points of the compasse or Card of the vulgar and unruly apprehensions the Wind or Heriâ—an of the complaints can come which are made against them unless any should be so bruitish as to think the payments of Rent to their Land-Lords or the performing of their oaths when they make Fealty or their Covenants Promises or Contracts are a grievance And therefore until upon any account of truth or reason a just and more than ordinary care of the King shall be reckoned to be a Curse Favour a Fault Protection a Persecution Benefits shall be taken for Burdens Blessings for Bondage performance of promises a Sin and compelling of them an
with as much or more cost and trouble as in other Courts Extents Seisures Accompts before Auditors Surcharges and Exceptions Fees to Auditors and their Clarks Concealment of Wardships vexatioâ—s chargeable hunting after them and the cunning search and Inquisition which is made after them by the Escheators Feodaries or Informers busie and malicious Adversaries which is not often and but where the parties endeavour to deceive the King and the Court and evade the Law and the extremities put upon them by granting it and the Mesne rates to the fierce discoverers or such as seek profit out of other mens troubles and afflictions Restraints from felling of Timber without Licence of the Court begetting the charges of motions the attending upon the Court and their many Officers A constant and certain yearly Revenue of eighty thousand pounds per annum or so much more as the Revenue shall fall short of twenty thousand pounds per annum which the alienation office now yields to be added to it will be duely answered and paid to his Majesty which will with all charges expences deducted as is alleaged be as much as was yearly gained to the Crown by the Court of Wards and Liveries or any dependances thereof against which if there shall be opposed and put into the other end of the ballance these inconveniences following they will weigh very much the heavier CHAP VI. The great and very many Mischiefs and Inconveniences which will happen to the King and Kingdom by the taking away of Tenures in Capite and Knight Service FOR that Lands in Socage will if the Mothers be alive during the minority of the heirs most commonly fall until the age of fourteen years into their Guardianships who as all women which have an estate considerable either real or personal in their own right or their Childrens do more then nine in every ten unleâ—â— which seldome happens they shall be such good women and loving as for their love to their Children and dead Husband to deny themselves their expected content by a second Husband by the temptations and flatteries of younger Brothers or men of decayed Estates transire ad secundas nuptias marry again all too often within the first year which the Civil Law reserved for the time of their mourning or retirednesse from worldly pleasures and do too commonly bring the Childrens Estate to be as a Sawce to the hungry enough appetite of a Father in Law who being many times as good a Guardian to the Children as the Woolf or Fox is to the Lambs will be sure if he do not spend both the Mothers and Childrens Estates and bring them to beggery to be gnawing and put many a lurch and trick upon them Which might be the Reason that the prudent Romans were so little willing that the Mothers of any Children should after their Husbands death be the Guardians of them as they had a Custome that the Mothers themselves should be in perpetua Tutela in a perpetual Wardship or Guardianship for Cicero would have it that Mulieres propter infirmitatem Consilii Women though of full Age should by reason of their unfitnesse to govern or give Counsail be in Tutorum Potestate have Tutors assigned them and the Judicious Cato declared it openly in publicae Concione in a publique Speech concerning the Oppian Law that Majores nostri nullam nè privatam quidem rem agere Faeminas â—ine Auctore vâ—luerùnt Their Ancestors did not permit Women to meddle not so much as in private affairs without a Director or Overseer And Vlpian tells us that Lege Atilia sancitum ut mulieribus et pupillis Tutores non habentibus a Praeâ—ore et majore parte Tribunorum darentur It was enacted by the Atilian Law That the Praetor or Lord Chief Justice and the greater part of the Tribunes should appoint Guardians to such Women and Children as had none And if the Mothers should either make themselvs or be allowed by the Magistrate as one way or the other it will be most likely to be the Guardians before the Heirs age of 14. or if at 14 the Children should be left as they must to chuse their Guardians themselves the Fear and Awe of the Mothers or their second Husbands Inticements and Kindnesse but for that instant will in all probability induce them to chuse no other so whether before the age of 14 or after it is likely to be no otherwise but that where the Mothers are living marryed again the self-seeking and purloyning Father in Lawes of the Kingdom will be the Guardians and where there are a second Brood of Children which will not be seldom the Estates of the Children of the first Husband shall be sacrificed by the Mothers Consent or permission to the benefit of the second Children whose Father making much of the Mother or flattering her finds it to be no hard matter to make her as willing to it as himself and if she would hinder or doth not like it can but steal her sighs and weep and lament in a Corner for that which she may wish wer otherwise but cannot help it when she is Sub potestate viri Under the Power of a second Husband And if not granted to the Mother or her second Husband but to the Friends of that side which cannot inherit which where the Mother is not an heir must of necessity be to her kindred it will not then also escape another common often and sadly experimented fault or evil that the affections and care which doth usually assist and incourage honest and fair Dealings will not be so much in the kindred on the Mothers side which is but taken out of their Family and transplanted into that of the Fathers where the Mother her self is to forget her Fathers house and kindred nor equal that affection care and obligation which is on the part of the Fathers kindred to preserve that Family which weares their Name as well as their Blood And whether the Guardian in Socage shall be Tutor Testamentarius ordained by the Fathers last Will and Testament or a Pretore datus appointed by a Judge will not arrive to any better Fate or Condition than that where there be Executors or Administrators in personal Estates or Trustees in Real or Personal for Children and minors or for payment of debts who can many times neglect and forget the dying requests of Parents on their death Beds to to be careful of their Children and their own imprecations that God should do so and so to their own Children if they should not perform the trusts and let out their Consciences Hackney to the Devil to find ways to deceive and wrong them of whom and many other such Guardianships and faithlesse performances of trusts our Courts of Law and Equity do dayly heare more Complaints of fraudes and cosenings than they can either easily find out or remedy Which with that also of Father in Laws do in a woful experience exceed
ten to one all that hath been but only surmised of the Court of Wards which being a standing Court where there are no Interestâ— but a care only of the Kings and the Peoples just Rights and their Oaths cannot be so predominant or inchanting as the Interests advantages or designs of single Persons And it is not now to learn that the Mischiefs done to Infants and their Estates are more where they be in Socage then in Tenures in Capite and by Knight Service that there is a great difference between accompts that are to be made to a Court and impartial Auditors and where the Guardians will accompt when or where they list and give no security for true Accompts and discharge of their trust and without it are not to be trusted for that many times they faile in their Estates and are impoverished and the Evils that have happened to the heir of Hele or of Davenport where some of the Souldiery which were formerly Tradesmen have in the usurpations of authorities made themselves to be more then like the Master of the Wards and tossed and tumbled their Estates and Marriages at their pleasure and complaints are obvious where an Heir by the unconscionablenesse of Socage Guardians have by the spoyl and wast of their Woods and Estates been damnified ten or twenty thousand pounds The Kings Tenants will be enabled to alienate their Lands to such as may be open enemies or ill affected to his Person Succession or Government Which will leave him a lesser power over his Subjects in relation to his â—enants and those that hold of him then every Gentleman and Lord of a Mannor hath in England over his Coppy-holders or such as hold of them by Leases for lives or years Which every Land-Lord finds aswel as believes to be so necessary as Citizens and Burgers and all manner of Land-Lords doe both in litle and great estates and leases especially provide against letting setting or assigning without their license first had in writing unless it be sometimes to Wives or Children which in the Kings case in matter of free-hold was in 32 H. 8. allowed his Tenants so as they left a full third part to descend to the Heir The education of the Heirs in minority of Recusants or persons disaffected to the King or his Government or to the Orthodox Religion Provisions for protections for younger Children and care of payment of Debts preservation of the Wards Estate Woods and Evidences will be neglected The finding of Offices or Inquisitions post mortem of the Auncestor and the true extent and quantities of the Mannors and Lands and many times the finding or mentioning of Deeds or Evidences in the Offices which in antient aswell as latter times have given a great light and help to titles and descents of Land and the recovery and making out of Deeds or Evidences lost will now be laid aside and all things left in the darkness of ignorance and incertainty Genealogies and Pedigrees which by such Offices have only since the beginning of the raign of King H. 3. been deduced and brought into great certainties will now be left like those of the Welch to beleive one Ap after another and Ap John Ap Jenkin Ap David and whatsoever the wild traditions and boastings of our New men or upstarts and our Bards or undertaking ignorant Painters to draw money out of their credulous customers purses shall be pleased to fancy and shall not be so happy as the Jews in their return out of their captivity who were not to seek for the registers of their Genealogies but be like the dull Thracians who are said to have so short a memory as not to count above the number of 4 or 5 Or being like a House with the windowes or lights only backward or as a people with their eyes only in their backs and in the time to come not be able to give an account of our Ancestors further then our Grand-Fathers And no other course or way being yet found to preserve the memory or right of Armes or certainty of descents of our Nobility and Gentry the people which the more Peysant and Mechanick part will be glad of will be left to fool and make one another believe their own Rhodomantadoes and Delusions Cause increase and multiply contention betwixt the Kindred and near Relations of the Orphans and Minors in striving who shall have the Manage and Protection of their Lands and Estate or as too often happens most cleanly or hypocritically deceive or ruine them or make an Interest or Advantage for themselves friends or kindred by their Marriages which in these last twenty years and the practise of Counterfeit Religion and Honesty calling every successfull knavery a Providence of the Almighty who not only hates but will punish it can take 500 l. or or more at a time to make Matâ—hes where they pretend great friendships and in an Age of all manner of cheating and cunning devices to maintain Pride is become the beneficial imployment of many that would be thought to be Gentlemen or people of great respect or worship and if a Trades-man or Citizen whose riches and influence have of late been too much upon all men or their estates in the Kingdome more especially those that are prodigal or vitious should get a Guardian-ship may doe as the Dutch are now complained of who out of their Weis Camer Chamber or Court of Orphans can send their monyes to trade as far as the East-Indies not for the Childrens but for their own advantage and in the mean time make delayes and pretences enough not to pay them their money insomuch as a young Girle whose Parents dyed when she was but three years old was of late so out of patience with Petitioning and attendance untill she was 17. as shee had almost clawed out the Grefâ—â—erâ— or Registers eyes and in the chase of such controversies which upon pretences of nearer of kin weakness of Estate in some or bad life and conversation and unfitness in other may aswel be lengthened and made to be very chargeable as those are concerning Executors or Administrators which doe too often make the Infants money and Estates the lamentable paymasters Whereas in the Court of Wards Controversies or Competitions for Wardships were by reason of the instructions and rules by which they walked easily and quietly determined in an hour or litle more time spent Summarily and upon Petition only in the Council Chamber of that Court. There will not be that ready help or care which was used to be for the preservation of the Wards estate from false or forged Wills fraudulent or forged Conveyances unjust Entries and pretended Titles and other Incumbrances Nor for Tenants in Tayl and their Heirs whose Deeds being found in the Offices did many times prevent their disherision by Heirs by second Venter and forged Conveyances or Wills Creditors cannot for want of such Offices sound know how the Debtors Lands are setled or what is in Fee-simple
invented to fasten Subjects to their Duty any one of which cannot now with any safety to the King or his Kingdom and people be separated or disjointed more especially that of Homage for that former ages understood the Obligation of self Preservation and Interest to be more binding than Oaths as Salmuthius in his learned and accurate Comment upon Pancirollus well noteth Ut amore humani ingenii pro illis habeant maximam Curam in quibus suam vident esse positam Substantiam That men most commonly take most care of that wherein their Lands and Estates are concerned which that antient Committee-man and old Sequestrator the Devil well understood when he got an Order or Permission to ruine the Righteous Job in his Estate and our last twenty years can inform us how impotent and unable Oaths of Allegiance and Supremacy Protestations National Covenants with hands lifted up to heaven calling God to witnesse Loyalties hot and fiery Zeals and pretences of Religion setting up of Christ and his Interest and walking with God in the more as it was wrongfully called refiâ—â—ed way of his worship to resist or stand in the way of Interest Dangers Hazards Self-seeking and Self-having in this world but nothing at all in the better Which the reserving of Fealty or its being always to be taken upon Tenures in Socage and as well upon Leases for years as Estates of freehold and inheritance will not remedy when as Sir Henry Spelman hath well observed Fealty though it be taken upon Oath is not so obligatory as Homage though it be not taken upon Oath for that the Words of Homage are devenio homo vester ab hac die in posterum de vita de membro de terreno honore verus fidelis vobis ero fidem vobis portabo ob terras quas a vobis teneo I become from this day forward your man of life member and earthly honour and shall be faithful and bear faith unto you for the Lands which I hold of you And is not so awful binding as that which was used in the British or Saxon times or shortly after the Conquest viz. ad defendendum Regnum contra alienigenas contra inimicos una cum Domino suo Rege terras honores cum omni fidelitate cum eo servare quod illi intra extra Regnum fidelis esse voluit intra extra Regnum defendere that is to defend the Kingdom against Foreigners and Enemies within and without the Kingdom and with the King to defend his Lands and Honours with all fidelity and would be faithful to the King within and without the Kingdom that that which is prescribed by the Statute of 17 E. 2. in which also the form and words of the Homage is declared and expressed ever since used viz. Quod vobis ero fidelis et legalis et fidem vobis feram de tenementis quae de vobis teneo et legaliter vobis faciam Consuetudines et servitus quae vobis facere debeo ad terminos assignatos ut deus me adjuvet that I shall be faithful and loyal and faith bear to you for the Tenements which I hold of you and shall lawfully doe and perform to you all Customes and Services which I ought to doe at the Tearms assigned So God me help is far lesse obliging and comprehensive and so litle in the opinion of the Tenants or Fealty makers as sufficit plerunque As Sr. Henry Spelman saith si pactos redditus exoluerit sectamque Curiae Domini ex more praestiterit Domini autem non milit at nec armis cingitur they most commonly think it extendeth but to pay the rents agreed upon and doe the accustomed suit and service to their Lords Court Which in the Civil Law form of an Oath of Fealty used in the parts beyond the Seas in this manner viz. Ego juro ad sancta dei Evangelia quod a modo in antea ero fidelis ei ut vassallus domino nec id quod mihi sub nomine fidelitatis commiserit pandam alii ad ejus detrimentum me sciente I swear upon the holy Evangelists that from henceforth I shall be faithfull to him id est the Lord as a vassal to his Lord nor shall willingly discover to another any secret which under the name of Fealty he shall commit unto me was taken and found to be so slender a tye or obligation as Alia de novo super fidelitatis juramento inventa forma et utentium consuetudine quae hodie When Obertus de Orto wrote his books de feudis in omni curia videtur obtinere a new form of the Oath of fidelity was found and invented and is used saith he almost in every Court and approved by those that used it Scilicet ego Titius juro super haec sancta dei Evangelia quod ab hac hora in antea usque ad ultimum diem vitae meae ero fidelis tibi Caio domino meo contra omnem hominem where it is to a mesne Lord excepto Imperatore vel Rege I Titius doe swear that from this hour to the last day of my life I shall be faithful to thee Caius my Lord against all men except the Emperour or the King which saith the great Cujacius by reason that the genuine sence or meaning of the words would not be so well understood by ignorant men haec adijci solet other clauses words were used to be added which amounted to as much as the duty of one that doth homage for Lands holden by Knights service which Cujacius thought to be necessary enough quod plaerique fidem sibi promitti satis non habent nisi et fidei partes muniaque specialiter enumerentur veleo maxime si quid contra ea fecerint ut non possint negare se commisisse in Jusjurandum et feudum amisisse for that they did not think it to be enough to have fealty promises made unto them unless the duties and parts thereof should be especially enumerated to the end more especially that iâ— they should doe any thing contrary therunto they should not be able to deny that they had broken their Oath and forfeited their Fee and Lands so litle were they satisfied with the slight or general words formerly used in the Oathes of fealty though in more just and honest times about the reign of Charles the great Emperour the word fidelis or a fealty did contain in it howsoever not expressed a promise de tuenda vita et honore domini et si quid aliud specialiter jurejurando exprimi solet to defend the life and honour of the Lord and every thing else which was specially expressed in the Oath so great a care was taken to make the first intentions and promises of those that had those Fees given them to come up and be answerable to the good will and expectations of those that gave them And therefore it may
and be admitted Turn the Tenures in Capite which are only so called from the duty of Homage and the acknowledgement of Soveraignity and Headship in the King into a Tenure in Socage which is so far from acknowledgeing the King to be chief or to ingage as the other doth their Lands to do him service as it is but a Tenure as it were a latere is no more then what one Neighbour may acknowledge to hold or doe to another for his Rent or money be a Lease for a Life or one or more years or as Tenant at will and levels and makes rather an equality then any respect of persons which if ever or at all reasonable or fit to be done is in a democratical or popular way of Government but will be unexampled and is not at all to be in Monarchy may make many of the people which are not yet recovered out of a gainful Lunacy to beleive they were in the right when they supposed themselves to be the Soveraigns Ireland which in the subverting Olivers time was to have their Swords by the like Tenure turned into Plow-shares though their warres and taxes were never intended to leave them was to pay but 12000 l. per annum to turn their better Tenures Conditions into worse will if they be not come again to their wits expect the like prejudicial bergain Bring many inconveniences and mischiefs to the Nobility and Gentry of Scotland if their Tenures in Capite and Knight service and those which are holden of them as Mesn Lords shall as ours be taken away with their services and dependencies Licences of Alienation benefits of Investitures infeodations and the like it being amongst others as a reason given for Wardships in that Kingdom in the Laws of Scotland in the reign of their Malcombe the 2. which was before the Conquerours entring into England Ne non suppeterent Regiae Majestatis facultates to the end that the King should have where-withall to defend the Kingdom And a letting loose of a fierce and unruly people who are best of all kept in awe order by a natural long well enough liked subjection to their Mesne Lords and Superiours into a liberty which cannot be done without a disjointing and over-turning all the Estates of the Nobility and Gentry of that Kingdom and may like our late English Levellers either endeavour to do it or bring themselves and the whole Nation to ruine by a renversing of the fundamental Laws and that antient order and constitution of that Kingdom wherein the estates and livelyhood of all the Nobility and Gentry and better part of the people are hugely concerned And besides a great damage to the King in his Revenues and profits arising out of such Tenures if not recompenced by some annual payment Will howsoever take away that antient Homage and acknowledgement of Superiority which from that Kingdom to this of England cannot be denyed to be due and to have been actually and antiently done and presidented and not in one but several ages fidem obsequium ut vassallos Angliae Regibus superioribus dominis jurejurando promisisse to have done their Homage and Fealty as vassals to our English Kings and bound themselves by oath thereunto as namely to Alfred Edgar Athelstane William the Conqueror William Rufus Maud the Empresse Henry the second and Edward the first the later of whom with all the Baronage of England in a Letter to the Pope did upon the search of many Evidences and Records stoutly assert it Will be no small damage and disturbance to the Kings other Regalities and Prerogatives and in the Tenures of the Cinque Ports who are to provide fifty ships for the guarding of the Seas and the Town of Maldon in Essex one the Town of Lewis in Sussex as the Book of Doomsday informeth where King Edward the Confessor had 127 Burgesses in dominio eorum consuetudo erat si Rex ad Mare custodiendum sine se suos mittere voluisset de omnibus hominibus cujuscunque terrae fuissent colligebant 20 sâ—lidos hos habebant qui in manibus arma custodieâ—ant had 127 Burgesses in his demeâ—ne of the King and when he sent any of his men to guard the Seas they were to gather 20 s. a man which was to be given to those that manned the Ships in Colchester where the custom then was that upon any expedition of the Kings by Sea or Land every house was to pay six pence ad victum soldariorum Regis towards the quarter or livelyhood of the Kings Souldiers and likewise prejudice him in his grand and Petit Serjeanties and many thousand other reservations of honour and profit by and upon Tenures in Capite and Knight service which revived and called out of their Cells wherein those that are to do and pay them are content they should sleep and take their rest for ever would go near to make and maintain an Army with men and Provisions The King when the Tenures in Capite shall be taken away shall never be able to errect his Standard and to call thereunto all that hold Lands Fees Annuities and Offices of him to come to his assistance according to the duty of their Tenures and the Acts of Parliament of 11 H. 7. chap. 18. And 19. H. 7. chap. 1. of forfeiting the Lands and Offices holden of him under the penalties which was the only means which the late King his Father had to protect as much as he could himself and his Subjects or to manifest the justice of his Cause in that War which was forced upon him and was very useful and necessary heretofore for the defence of the Kings of England and their People and proved to be no otherwise in the Bellum Standardi so called in the reign of King Stephen where some of the Barons of England and some of the English Gentry gathered themselves to the Royal Standard and repelled and beat the King of Scotland and in several Kings reigns afterwards repulsed the Scotch and Welch Hostilities and Invasions and at Floddon Field in King H. 8 ths time when the Duke of Norfolk and his Son the Earl of Surrey and diverse of the Nobility and Gentry which accompanied them vanquished and slew the King of Scots The benefit whereof the Commons of England had so often experimented as in diverse Parliaments they Petitioned the King and Lords to cause the Lord Marchers and other great men to repair into their Counties and defend the borders and was so necessary in France to assemble together the Bans and Arrierebans which were but as our Tenants in Capite as it helped King Charles the 7 th of France to recover that Kingdom again out of the hands and possession of our two Henries the 5. and 6. Kings of England And if any Rebellion or Conspiracy shall hereafter happen When Cum saepe coorta Seditio saevitque animis ignobile vulgus Fury and Rage of
three Knights Fees to be performed in the said Army for the Earldom of Essex which shews also that then those Antient Earldoms of England were no other then by Tenure and Feudal by John de Ferrers Henry de Bohun and Gilbert de Lindsey Knights And in the same Constables Roll and at the same time Walter de Langton Bishop of Câ—ventry and Liâ—chfield recognovit et offert Servitium duorum Feudorum militum pro Baronia sua faciendum per dominos Robertum Peverel et Robertum de Watervile milites acknowledged and offered the service of two Knights Fees to be performed for his Baronie by Sir Robert Peverel and Sir Robert Watervile Knights Mr. Selden is aâ—so of opinion that to hold of the King in Capite to have Possessions as a Barony to be a Baron and sit with the rest of the Barons in Parliament are according to the Laws of those Times Synonimies And upon this and no other ground or foundation is built that as noble and illustrious as it is antient Pairage of the 12 pairs of France all of whom even the Earldom of Flanders now in the hands of the King of Spain do hold in Capite or Soveraignty of the French King and that great and eminent Electoral Colledge in Germany and the mighty Princes thereof are no other than Tenants in Capite and holding their vast Terrytories of the Empire by grand Serjeanry and have feuda antiqua concessa acquisita generi familiae connexam habentes Principatibus et Territoriis suis dignitatem Electoralem and have an antient Fee or Territory granted and acquired to their Issue and Family and a dignity Electoral annexed to their Principalityes and Territoryes And it cannot with any reason or Authority be said or beleived that the late Charles King of Sweden could by the Treaty or Pacification at Munster have been made a Prince of the Empire or have had place or voice in their Diets if he had not had the Bishopprick of Breme and other Lands and Provinces as Fiefs of the Empire in his Possession to have made him a member thereof and that the Prince Elector Palatine who by reason of that Territory justly claimeth the Vicariat of the Empire had never been made the eighth Elector if he had not had part of the Palatinate which he now enjoys For certainly if the care and wisdom of our Progenitors or Ancestors could not think it fitting to compose that high Court of Judicature of Strangers or grant them an Inheritance in it which had no Lands or Possessions to make them a concernment and to be more careful of the good of the Kingdom as Oliver or Dick of the Addresses would have done their Mungrel Scotch that had no Lands at all in England but a stock of Knavery but would rather bring in such as had the best Estates and holden by the most noble and serviceable Tenures in order to the defence of their King and Country and were the most honourable wise and understanding then such as had been Servants or of a low extraction race of mankind by their folly and whimsies had not long agoe tossed and tumbled about poor England like a Foot-Ball which may call to our remembrance that opinion or a lage of the Antients that Jupiter subdâ—xit servis dimidium mentis that God would not allow â—ervants or men litle better or rudely and ignorantly educated any more then to be half witted some of our late Levellers at the same time making a difference betwixt the antient great Estates of the Peers and Barons of England and that lesser which they now enjoy to be an objection against the House of Peers in Parliament for that now as they mistakenly surmised they could not as formerly be a banck or ballance betwixt the King and the people And howsoever that the temporal Barons as well those which were since the middle of the reign oâ— R. 2. created by Patent to be unum Baronum Angliae as in Sir John Beauchamps Patent to be Baron of Holt or as many later to have loâ—um voâ—em et sedem in Parliamento to have voice and place in the Parliament as those that hold per Baroniam and that those that hold per Baroniam and were Barons by Tenure do not come to Parliament but when they are summoned by the Kings Writ as the Bishops also do not and as in the Earl of Bristols Case was adjudged in the late Kings time are to have their Writs of Summons ex debito justitiae as of right due unto them yet a first second or third Summons which is only and properly to give notice when and where the Parliament beginneth cannot as Mr. William Prynne hath learnedly proved any way make or intitle any man which shall be so summoned to be a Peer or Baron that is not a Baron by prescription or was not created nor doth that Clause in the Patents of Creation doe or operate any more then that such new created Barons who are also Tenants in Capite and as all the other Barons doe ought to do their Homage shall be one of the Barons in Parliament have voyce and place there deny that they that sit there by Tenure and per Baroniam doe not sit there and enjoy their Honors and Dignities as Tenants in Capite and per Baroniam or that those that come in by patent amongst them doe enjoy their places as incorporated and admitted amongst them and not as Tenants in Capite and being added to them do help to continue the Society or Court though they be not of one and the same Original or Constitution as Prebâ—nd added â—o a Cathedral Church may make them to be of the old Constitution but takes it not away and as the grant of King H. 8. to the Abbot of Tavestock quod sit unus de Spiritualibus et Religiosis dominis Parliamenti could not have altered his former and better condition if he had held any Lands per Baroniam And though the Creations by Patents may well enough sustain the priviledges of those that sit and were introduced by it yet the greater number or as many of the Earls and Barons as hold per Baroniam such as the Earls of Arundel and Oxford Lords Berkley Mowbray Abergaveny Fitz walter Audley De la ware and that great number which were before R. 2. and were not created by letters Patents and had not the Clause of locum vocem et sedem in Parliamento will lose their Peerage and right of sitting in Parliament if the other doe not when as their Patents giving them sedem vocem et locum in Parliamento doe but entitle them to be of that House whereof the other Earls and Barons were and to be but as the former Barons were which hold per Baroniam and in Capite As if a Lord of a Mannor could create a man to be one of his Coppy-holders he should be no otherwise then as a
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
Tenures in Capite and finding of Offices wherein the Evidences being produduced and many Times found did not only find but declare what Estate the deceased was seised of and if the truth did not then appear which could hardly be hid when as the Jury were commanded by the Writ of Diem clausit extremum to inquirâ— upon their Oaths of what Estate the last Ancestor dyed seised of and that the vigilancy and cares of the Feodaries and Escheators who were also to be present to attend them would cause them to be the more careful and if the fraud of the Heir should be able to make its way or escape thorough them the Estate found in the Office would after prove to be an Evidence against them and either overthrow or perplex the Knavery of such wicked designs The Recompence of 100000 l. per Annum if it could be raised without Injustice or the breach of the Laws of God Nature and Nations and our oftentimes confirmed Magna Charta and the inforcing of 19 men in every 20 to bear burdens which nothing at all appertains to them will not be adaequate to the losse of a great part of the Kings Revenue which did serve for the maintenance of his Crown and Dignity and to exempt and ease the Subjects of extraordinary Taxes and Assessements which the Necessity of Princes for the good and Defence of the Kingdom must otherwise bring upon them Nor to the want of Tenures in Capite and by Knight Service the Services Incidents belonging unto them being a certain and never failing Defence of himself and the Kingdom Castle-guard Licence of Alienations giving him notice and continuing him safe in the Change of his Tenants being so necessary to Government as some have been grievously fined for alienating their Lands in Capite without it Mariage Dependancy of the Heirs which hold of him Livery and Reliefs Grand Serjeantyes and a great part of the Honour and Priviledges which all other neighbour Kings ond Princes are neither desired to part with nor can he perswaded so much to lessen themselves and their Regalities For gold and Silver and precious Stones or any thing lesse than the whole Kingdom of England it self is not of value or to be compared to the Honour of a King and the homage and duty of his Subjects the Gratitude Faith and Promises of their Ancestors which should descend to them with the Lands holden by those Tenures whenas Omnes habent Causam a primo et ex tunâ— non ut ex nunc are bounden to the Cause which obliged their first Ancestor and Progenitor and are to consider that it is now as it was then a most ready means and help which did and doth naturally and kindly arise for the Defence of themselves and the Kingdom for as it is not the weight of an inestimable Dyamond or Ruby that makes either of them to be better than a Flint or any other Stone but the lustre vertue and scarcenesse of them and that a greater poise or weight of a man makes not a Solomon an Alexander Sir-named the great or an Aristotle but that all men and things are to be esteemed according to the vertues and Excellencyes which are in them so it will not be the yearly Profit in money which was made of the Wardships primer Seisins Liveryes and Incidents which belong to those Tenures but the Homage Dutie gratitude and necessary Attendance in War not only of those that held immediatly of the King but those that were the mediate Tenants and came also with the immediate the grand and mutual Tye betwixt the King and his people and the Regality Prerogative intrinsical and true worth and value of them when there should be any use of those necessary Defences of the King and his Kingdom in making a diversive War or succouring his Friends and Allies which are not seldom or were in more heroick times justly accounted to be as Outworks Ante Murales or Bulwarks of the Kingdom that the Rate which is now offered for those Tenures are but like a Tender or Offer to give the weight in Gold for an incomparable not to be got again and unvaluable Meddal or for Aarons Brest-Plate Moses rod or the Scepters of Princes if they could have been purchased at all and by weight It will be as unsafe as unusual to take money or Turn into a Rent that which in its first Institution and a happy long and right use which was made of it was only intended for a defence of the Kingdom when the King is not likely to be any â—aver by it and shall not gain 90000 l. per Annum his own Income by Licences of Alienation deducted for the clear Profit of the Court of Wards which the Lord Cottington when he was Master of that Court did but a year before the Troubles make as much by it besides the many great and royal Prerogatives which he shall lose to gain more mischiefs and Inconveniencyes to himself his People then at the present can be instanced or numbred The giving the King a Recompence by an yearly Rate amounting to one hundred thousand pounds per Annum to be charged upon all mens Lands Tenements and Hereditaments holden in Capite or Socage by Copy-hold Leases for Lives or Tenants at Will or for yeares will be against right Reason Justice and Equity as well as unwarranted by any hitherto Law or Custom of England to make 19 parts of 20 for so much if not more will probably be the odds that were not liable to Wardships or any imagined Inconveniences which might happen thereby not only to bear their proportionable part of the general Assessements for War but a share also in the burden of others where it could never be laid upon them and wherein they or the major part of them by more than two in three have no Lands in Fee simple Fee taile or by Leases for 100 years or any longer Term nor are never like to be purchasers of any Lands at all and if they had mony to do it are not likely to buy Inheritances if inheritances not Capite or Knight Service Lands when there is by more than 9 parts in 10 of Socage or Copy-hold Lands to be purchased were not nor are like to be in any danger of Wardships or under any fear or Apprehensions of it and render the Capite Land three or four years purchase dearer than it was wont to be and the Socage Lands three or four years purchase the cheaper only to free the Nobility Gentry and men of greatest Riches and Estates in the Kingdom which are subject to those small Burdens which are only said to be in Tenures in Capite and by Knight Service Or if laid upon the Moyety of the Excise upon Ale Beer Syder and Coffee c. or any other native or Inland Commodity will fall upon those that have no Land as well as those which have as upon Citizens Mechanicks Children
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
themselves or their Emperour with it make thereby themselves their posterity Slaves to the enemy of Christendome then put it to the right use of defending their Prince themselves and Posterities And will all resolve in this a defence of the King his people will be eternally necessary an ordinary a speedy a ready a willing and the most ingageing obliging way will be better then that which shall be extra-ordinary a far off and to seek or be enforced And the most ready means for a defence and at hand must needs be the most proper and beneficial for upon that ground Kings have their Treasuries Armories and Arsenals which Republicques are content to imitate Our Constables and Justices of Peace in England being as standing Officers and Guardians of the Peace are more for the safety of the people when they are made before hand to be ready upon any breach of peace then if they were to seek or to be made afterwards and iâ— would be no dimunition of the strength or defence of the Kingdome to have the Nobility and Gentry of England by the Tenure of their Lands as it were listed and undertaking upon all occasions to serve their Prince and defend their Country for the smallest understandings can find the way to determine that it will be better and more easie for the Subject to have the King and their Country served by a Knight service in acknowledgment of great Estates only given them for that purpose than to have 10 or 12000 men provided by the Subjects by a constant Pole money and Assessement upon them and their Heirs for a ready Guard and Assistance for the defence and safeguard of the Country as well as of the King which the Danes after their late so great misfortunes and miseries by the incursions furious attempts of the Swedes have learnt to be wisdome have therefore lately bound themselves and their posterities to maintain a guard of 10 or 12000 men to be paid by a Pole or Assessement And unless the divine light of reason and that which hitherto hath been called wisdome have altered their courses and resolved that which is retrograde and quite contrary to be the better the most safe and natural way will be as it ever hath been to have our men at Arms to be Natives rather than Forreigners such as are of the better sort and bred and educated in Feats of armes rather then such as have neither skill nor courage and such as have Lands and Estates of their own to make a concernment rather than such as have none Better to have the Nobility and Gentry who are bred and trained up in War and understand the necessity and causes of a War to be ingaged in the defence of the Kingdom than the vulgus who are often called and too often experimented and best know how they came to deserve it mobile imperitum vulgus a Beast of many heads and without a Superiour or Governours are â—it only to attempt again the building of Babel wherein if they were all of one language they would for want of agreement or wit either totally miscarry in the building or make it to be an unimitablepeice of deformity For it was certainly no fault in Abraham that he had 318 Servants born in his own house to Arm in a case of necessity to rescue his Brother Lot Nor in David that he had Servants to passe before him to War Or when he well understood that the Children of Israel when they had no King and every one followed his own Imaginations were often delivered into the hands of the Midianites Philistims many of the Nations round about them and that Deborah Baruch having undertaken to releive them were enforced to pronounce a Curse against thosâ— that came not to help the Lord against the mighty when Reuben had great devisions did abide amongst the Sheep-folds Dan remained in Ships and Ashur continued by the Sea-Shore And that he had tasted of the fickleness infidelity of the men of Judah Israel in the Rebellion of Absalom did though they were afterwards so kind unto him as to wrangle with the men of Judah for bringing him home to his Kingdom and not giving them a share in the honor of it not think it to be repugnant to the good and safety of the people to settle a strong well formed Militia and to have a Life-guard of 24000 valiant men to attend by months and courses the safety of his person and his peaceable Government which must needs be better than to be left to the humor of the people to go or not to goe with their Prince to war as the wind of their Interest or faction shall blow them which may make such kind of aids in the greatest of necessities to be hardly compassed And the Delectus of the Roman Souldiers in their growing greatnesse and most virtuous condition of that State or Commonwealth before their course and custom of Patronage Clyentelage had taken root and gained approbation and their often Mutinies and refuseing nomina dare to list or Inroll themselves unless usury might be lessoned and Lawes cut out to their Fancies hath told us how like Egiptian Reeds such a away of raising men to defend the King themselves and the Kingdome will be to those that shall most trust or leane upon it So that then the Gorgons head and the Bugg-beare of the Tenures in Capite and Knight Service being only the marriages and puting the Wards Estates under a rent whilst they shall be in minority if rationally considered with allowance of the seldome happening of it or but once in three or four descents and two yeares value being allowed upon the death of every Tenant in Socage or Coppy-hold Estates at the admission of every one of their Heirs will with their reliefs and herriots possibly make the accompt of the mony and charge of the wardship to be something equal if not a great deal lesse Which howsoever may be removed or made to be more familiar and better understood or born if the Tenants in Capite and by Knight Service shall be exempted from all other Taxes or Assessements for War but what belongs to their Service as by Law they antiently were and ought to be the Wards nor their Estate during that time being never heretofore charged with any such Assessements as our late Tax-Masters have laid upon the People when as the fifth and many times the third part of the Wards yearly Rents besides a fifth part of the value of their real estate and a twentieth of the personal and revenew enforced taken from them to maintain Iniquity would have saved more mony than the Wardships cost Or if that will not still the causelesse out-cry that the Licence of Alienation which as well as in Capite by Knight Service are by the Custom of many Manors to be paid in Socage and the Homages Grand and Petit Serjeanties Reliefs Primer
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