them that is Freeholders and such as hold by Knight Service So in the great Court of all the Kingdome none were antiently personally called to give Judgement and advâ—se therein but such as were near to the King and bound and obliged to him by a greater Bond and Tye of Faith and Homage that is to say his immediate vassals Barones nempe cujuscunque generis qui de ipsi tenuere in Capite ut videndum est in breve de summonitione wherein they are summoned in fide homagio quibus tenentur in the Faith and Homage by which they held partim in charta libertatum Regis Johannis and Barons of any kind whatsoever which held of him in Capite as may appear by the Writs of Summons to Parliament the Charter of King John Hence the Barons of England are in our laws said to be Nati Consiliarij born Counsellors of State and Baro signifying Capitalem Vassallum majorem qui tenetur Principi Homagij vinculo seu potius Baronagij hoc est de agendo vel essendo Baronem suum quod hominem seu clientem praestantiorem significat A Baron who is a chief or Capital Vassal is bound to his Prince by the Bond of Homage or rather Baronage which is to be his Baron or man or more considerable Clyent and makes a threefold dvision of Barons who by Bracton are called Potentes sub Rege great or mighty men under the King Barones hoc est robur belli and Barons which is as much to say as the strength of War into feudal or by prescription 1. Qui a priscis feodalibus Baronibus oriundi suam prescriptione tuentur dignitatem which being discended from Antient feudal Barons do continue their dignity by prescription 2. Rescriptitios qui brevi Regio evocantur ad Parliamentum which are called to Parliament by the Kings Writs 3. Diplomaticos which are by Letters Patents and Creation and that Barones isti Feodales nomen dignitatem suam ratione fundi obtinuerunt those Feudal Barons doe hold their dignity by reason of their Lands and Tenures and that Episcopi suas sortiuntur Baronias sola fundorum investitura Bishops are Barons only by investiture of their Baronies Lands and Temporalties And the most excellently Learned Mr. Selden who was well known to be no stranger to the old and most choice Records and Antiquities of the Kingdome doth not doubt but that the Bishops and Abbots did sit in Parliament and were summoned thither only as Barons by their Tenures per Baroniam and in his Epistle to Mr. Augustine Vincent concerning his Corrections of Yorkes Catalogue of Nobility doth most learnedly prove it by many Instances besides that in â—he Case of Thomas Becket Arch-bishop of Canterbury in 11 H. 2. and the claime made and allowed in Parliament in 11 R. 2. by all the Bishop Abbots and Priors of the Province of Canterbury which used to sit in Parliament that de Jure et consuetuâ—ine Regni Angliae all Bishops Abbots Priors and other Prelates whatsoever per Baroniam Domini Regis tenentes holding of the King by Barony were Peers of the Parliament which agreeth with the opinion of Stamford that the Bâ—shops ne ont lieu en Parlement eins in respâ—ct de lour possessions annexes a lour dignities have no plaâ—e in Parliament but in respect of their Possessions annexed to their Dignities and that Mr. Camden saith that divers Abbots and other spiritual men formerly summonned by writ to Parliament were afterwards omitted because they held not by Barony and that it was mentioned and allowed to be good Law in a Parliament of King E. 3. que toutes les religieuses que teignent per Barony soient tenus de vener au Parlement that all the religious which hold by Barony are to be summoned to Parliament And as to the temporal Barons doth besides what he alleageth of the Thanes or Barons of England in the Saxon times that they held by personal service of the King and that their honorary possessions were called Taine-Lands and in the Norman times after denoted by Baronies and the eminent and noted Case of the Earls of Arundel claiming and allowed to be Earls of Arundel by reason of their holding or Tenure of Arundel Castle and Sir John Talbots being Lord Lisle ratione Dominij et Manerij de Kingston Lisle doth by 22 E. 3 fo 18.48 E. 3. fo 30. other good Authorityes conclude that the Tenure of a Barony is the main principal Cause of the Dignity that 130 temporal Barons by Tenure were called by several writs to assist the King cum equis Armis with horse and Armes and the spiritual being about 50 were called ad habendum servicium suum and that the greatest number of Barons during all that time were by Tenure that the most part of the Barons by Tenure and Writ untill the middle of the Raign of King R. 2. and those that were called by Writ were such as had Baronyes in Possession that the honorary possessions of Earls were called Honors and reckoned as part of their Earldoms which were holden in Capite the chief Castle or seat of the Earls or Barons were called Caput Comitatus seu Baroniae the head or chief of the Earldom or Barony and that in this sence Comitatus integer is used for a whole Earldom in the grand Charter and Bracton and Servicium quarte partis Comitatus for the fourth part of an Earldom that Hugh de Vere Earl of Oxford Magnavile Earl of Essex and divers other antient Earles were Cingulo Comitatus Gladio Comitatus cincti girt with the Girdle or sword of their Earldoms which he conceiveth to be an Investiture All which may by the Records of this Kingdom be plentyfully illustrated by very many instances and by the Rolls of the Constables and Marshals of England in which upon the March of the Army of King E. 1. towards Scotland in the 28 year of that King Humfridus de Bohun Comes Hereford Essex Constabularius Angliae recognovit per os Nichoâ—ai de Segrave Baneretti sui locum suum tenentis se acquietari per servitium suum per Corpus suum in Exercitu presenti Scotiae pro Constabularia in Comitatu Hereford Humfry de Bohun Earl of Hereford and Essex Constable of England declared by Sir Nicholas Segrave his Baneret and Lieutenant that he was to be acquitted for the Constabulary in the County of Hereford where it seems some Manors or Lands in that County were annexed to the said Office or held by grand Serjeanty by the Service of himself in the Army for Scotland I tem idem Comes recognovit per eundem Nicholaum Servitium trium feodorum Militum faciendum in dicto Exercitu pro Comitatu Essex per Dominos Iohannem de Ferrariis Henricum de Bohun et Gilbeâ—tum de Lindsey milites Also the said Earl acknowledgeth by the said Sir Segraveâ—â—e â—â—e Service of
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
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
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
prove to be of evil consequence if any of our new Socage men should like the Snakes thinking themselves the younger by casting off their Skins fancy in their old or the next factious humour they shall meet with that they are only to pay their rent and doe the services belonging to their Lands but are not bound to pay that principal part of their natural as well as sworn Allegiance to take Armes to defend the King and the Kingdome more especially when they shall hold their Lands in libero et communi Socagio et pro omnibus servitiis per fidelitatem tantum in free and common Socage by fealty for all services which may be more than a litle prejudicial to the Kingdome and the salus populi safety of the people so much fought for as was pretended to exchange the men of Armes and such as are fit for war as the Tenures in Capite doe truly and not feignedly import for those that shall claim exemption from wars and are by all nations understood to be the unfittest for it when those that by Tenure of their Lands and by reason of their Homage and Fealty were alwayes ready and bound to doe it and those that by a fealty not actually or but seldome taken will suppose themselves not to be bound at all unto it but being most disloyal will as some thousands of Phanatiques have lately done imagine themselves to be most faithful and where the Knight Service men were to forfeit their Lands so holden if they did not doe their service within two years or pay Escuage assessed by Parliament if they went not when they were summoned or sent another in their stead the new or old Socage men shall be under no manner of penalty of forfeiture at all Which may seem to be the cause that England and all other Civilized and well constituted Nations Kingdoms did put that value upon Homage of which there is some likeness of Fealty also in that of the Princes mighty men of Israel and all the Sons likewise of King David submitting themselvs at his command unto Solomon giving the hand under Solomon as the margent renders like that Oath of Abrahams Steward as they understood it to be of the Essence of Soveraignty the great Assistant and preserver of it and the Bond of Obedience fixed and radicated in the interest of mens Estates kept in and guarded by their fear of loosing them And made our Kings so highly prize the Homages of their Subjects and conceive them to be the Liaisons or fastenings that kept their Crowns fast upon their heads as King H. 2. when he had unadvisedly made his Son Henry King in his life time caused the English Nobility to do Homage unto him and R. 1. returning out of Captivity had found that his Brother Iohn had almost stollen into his Throne caused himself to be Crowned the second time and took the Homages of his Nobility and our Kings have been heretofore so careful as alwayes at their Coronation to take the Homages of their Nobility and after a vacancy of a Bishoprick not to restore the Temporalties until the succeeding Bishop shall have done his Homage And appears to be no lesse valued by Foreign Princes when as Phillip King of France would and did to his cost refuse to receive the Homage of our King E. 3. by proxie but compelled him to do it in his own person for the Dutchy of Aquitain and an Arch-Duke of Austria was constrained in person to do his Homage to the King of France between the hands of his Chancellor for Flan-Flanders and the now Emperor of Germany hath lately and most industriously travailed through many of his Dominions and Kingdoms to receive the personal Homages of the Princes and Nobility thereof and not omitted to go to Gratz and Carinthia to have it as formally as really done unto him And was such a Jewel in their Crowns as they could sometimes to pacifie the greatest of their troubles by the Seditions and Rebellions of their Subjects find no greater or fitter a pawn or security to assure the performance of their promises and agreements than an absolving their Subjects from their Homage and Obedience which were as Synonimes or of one and the same signification in case of Breach of promises as our King Henry the 3 d. did in his necessities to Richard Marshal Earl of Pembroke that he should be freed from his Homage Si rex pactum suum violaret if the King should break his agreement and as the Antient Earls of Brabant are said to have done in their Reversals or Grants to their Subjects if they should infringe their Liberties or Privileges Which the seditious party that deposed King Richard the 2 d. knew so well to be a grand Obligation or Tye which Kings had upon their Subjects as they put themselves to the trouble of inventing a new trick of Treason solemnly in the name of the three Estates of the Kingdom viz. Lords Spiritual and Temporal and the Commons to renounce their Homages Fealties and Allegiance and all Bonds Charges and Services belonging thereunto which would have been to as little purpose as it was contradictory to all the Rules of Right Reason and Justice if they had not forced the distressed imprisoned King by a publick instrument upon Oath to absolve all his Subjects a Juramento fidelitatis homagiis omnique vinculo ligeanciae from their Oaths of Fealty and Homage and all Bonds of Allegiances and to swear and promise never to revoke it and is so precious inestimable of so high a nature so useful and of so great a value as nothing but the Kingdom it self can be equivalent unto it And our Nobility did so esteem of the Homage and Service of their Tenants and build as is were their Grandeur and Power upon it as they did antiently grant one to another Homagium Servicium of such and such Tenants Maud the Empresse gave to Earl Alberick de vere servicium decem militum the Service of ten Knights An Earl of Leicester gave to Bygod Earl of Norfolk ten Knights Fees which after the manner of those times may with reason enough be conceived to be only the Homage and Service of so many for the purchase of the Office of Lord high Steward of England and John Earl of Oxford in the Reign of H. 7. did at his Castle of Hedingham in Essex actually receive the Homages of many worthy Knights and Gentlemen that held of him May very much prejudice in their Dignities and Honors as well as Estates the antient Earls and Barons of this Kingâ—om by taking away Tenures in capite changeing them and Knight service Tenures into Socage when as the Earls of Arundel do hold the Castle and Rape of Arundel which is the Honor and Earldom it self by the Service of 84. Knights Fees the Earldom of Oxford is holden by the Service of 30 Knights Fees and that by a modus
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
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
under them and if any evil happened unto them either endured it with them or willingly ventured their lives with them others attribute it to the Saxons ubi jus antiquissimum feudorum semper viguit et adhuc saith the learned Craig religiose observatur where the feudal Laws were and are yet most religiouâ—ly observed and Cliens and Vasallus in matters of Fâ—wds and Tenures are not seldome in the Civil Law and very good Authors become to be as Synonimes and used one for the other And the later Grecians since the Raign of Constantine Porphyrogenneta in the East and the Roman Emperors in the West before since the Raign of Charlemain or Charles the great were not without those necessary defences of themselves and their people And such a general benefit and ready and certain way of ayd and help upon all emergencies in the like usage of other Nations making it to be as a Law of Nations There hath been in all or most Kingdoms and Monarchies of the World as well Heathen as Christian a dependency of the Subject upon the Prince or Soveraign and some duties to be performed by reason of their Lands and Estates which they held under their Protection and in many of them as amongst the Germans Saxons Franks and Longobards and several other Nations descending from them Tenures in capite and Knight service were esteemed as a foundation and subsistency of the right and power of Soveraignty and Government and being at the first precariae ex domini solius arbitrio upon courtesie at the will only of the Prince or Lord were afterwards Annales from year to year after that feuda ceperunt esse vitalia their Estates or Fees became to be for life and after for Inheritance So as by the Law of England we have nâ—t properly Allodium saith Coke that is any Subjects Land which is not holden of some Superior and that Tenures in capite appear not to be of any new institution in the book of Doomsday or in Edward the Confessors dayes an 1060. in King Athelstans an 903. in King Canutus his Raign in King Keâ—ulphus his Raign an 821. or in King Ina's Raign an 720. In Imitation whereof and the Norman no slavish Laws and usages which as to Tenures by the opinion of William Roville of Alenzon in his Preface to the grand Customier of Normandy were first brought into Normandy out of England by our Edward the Confessor the Customs Policies of other People and Kingdoms prudent Antiquity having in that manner so well provided by reservation of Tenures for the defence of the Realm William the Conquerour sound no better means to continue and support the Frame and Government of this Kingdom then upon many of his gifts and grants of Land the most part of England being then by conquest in his Demeasne to reserve the Tenures and Service of those and their Heirs to whom he gave it in Capite and by Knight Service and if Thomas Sprot and other antient Authors and Traditions mistake not in the number of them for that there were very many is agreed by the Red Book in the Exchequer and divers Authentiques created 60215 Knights Fees which with their Homage incidents and obligations to serve in Wars with the addition of those many other Tenures by Knights service which the Nobility great men and others besides those great quantities of Lands and Tenements which they and many as well as the King and others our succeeding Princes gave Colonis Hominibus inferioris notae to the ordinary and inferior sort of people to hold in Socage Burgage and Petit Serjeantie reserved upon their guifts and grants to their Friends Followers and Tenants who where to attend also their mesne Lords in the service of their Prince could not be otherwise then a safety and constant kind of defence for ever after to this Kingdom And by the Learned Sir Henry Spelman said to be due non solum jure positivo sed gentium quodammodo naturae not only by positive Law but the Law of Nations and in some sorts by the Law of Nature Especially when it was not to arise from any compulsary or incertain way or involuntary contribution or out of any personal or moveable estate but to fix and go along with the Land as an easy and beneficial tye and perpetuity upon it and is so incorporate and inherent with it as it hath upon the matter a co-existence or being with it and Glanvil and Bracton are of opinion that the King must have Arms as well as Laws to Govern by and not depend ex aliorum Arbitrio it being a Rule of Law that quando Lex aliquid concedit id concedit sine quo res ipsa esse non potest when the Law granteth any thing it granteth that also which is necessary and requisite to it And therefore the old oath of Fealty which by Edward the Confessors Laws was to be administred in the Folcmotes or assemblyes of the People once in every year Fide et Sacramento non fracto ad defendendum regnum contra Alienigenas et Inimicos cum Domino suo Rege et terras et honores illius omni fidelitate cum eo servare et quod illi ut Domino suo Regi intra et extra regnum Britanniae fideles esse volunt by faith and oath inviolable to defend the Kingdome against all strangers and the Kings Enemies and the Lands and dignity of the King to preserve and be faithful to him as to their Lord as well within as without the Kingdom of Britain which was not then also held to be enough unlesse also there were a tye and obligation upon the Land and therefore enacted that debeant universi liberi homines secundum feodum suum secundum tenementa sua arma habere illa semper prompta conservare ad tuitionem Regni servicium Dominorum suâ—rum juxta preceptum Domini Regis explendum peragendum every free man according to the proportion of his Fee and Lands should have his Arms in readinesse for the defence of the Kingdom and Service of their Lords as the King should command And it was by William the Conqueror ordained quod omnes liberi homines fide et Sacramento affirment quod intra extra universum Regnum Willielmo Regi Domino suo fideles esse volunt terras honores suos omni fidelitate ubique servare cum eo contra Inimicos Alieniginas defendere that all Free-men should take an Oath that as well within as without the Realm of England they should be faithful to their King and Lord and defend every where him and his Lands Dignity and Estate with all faithfulnesse against his Enemies and Foreiners Et Statuit firmiter precepit ut omnes Comites Barones Milites Servientes Teneant se semper in Armis in Equis ut decet oportet quod
have taken it for an addition of Honour and not any lessening to be knighted And had no cause at all to dislike such military Tenures which were not called vassalage as Common People may now mistake the word but from vassus or Cliens qui pro beneficio accepto fidem suam autori benificii obligat or from Gesell a German word which signifieth Socius or Commilito a fellow Souldier the name and profession reason and cause of it being so honourable and worthy Or to deem them to be burthens which were at the first intended and taken to be as gifts and favours which none of the sons of men who are Masters of any sense or reason do use to find fault with but may well allow them to be very far distant from Slavery when as Servitude is properly quum quod acquiritur servo acquiritur Domino when that which is gained or acquired by the servant is justly and properly the Lords and a freeman is contra-distinguished by quod acquirit sibi acquirit in that which he gaineth is his own or hath a property in it and that among the Southern Nations a more gentle and merciful bondage being paternd by that of Abraham and his successors the Patriarchs and allowed by the rules and government of God dura erat servitus Dominorum imperia gravia service or the condition of Servants was hard and the severity of Masters great who had potestatem vitae necis power of life and death over their Servants who having nothing which they could call their own but their misery were put to maintain their Masters out of their labours and enduring vilissima et miserrima ministeria all manner of Slaveries ab omni Militia arcebantur were not suffered to know or have the use of Arms apud Boreales tamen gentes justior suit semper servitus et clementior but amongst the Northern Nations there was a more just and gentle usage of their Servants for that they did devide their Lands Conquests amongst their Souldiers and Servants pactionibus interpositis inter Dominum et servientem de mutua Tutela upon certain agreements betwixt them for mutual defence Which made our English as well as other Nations abundantly contented with it as may appear by the acquiescence of them and the Normans under the Norman and next succeeding Kings and of Edward the Confessors Laws and other English customes retaining them the reckoning of it amongst their liberties fighting for them and adventuring their lives and all that they had at the making of Magna Charta and in the Barons wars wherein those great spirits as Mr. Robert Hill saith so impatient of tyranny did never so much as call in question that great and antient prerogative of their Kings or except against Tenures escuage releifs and other moderate and due incidents thereof The care taken in the Parliament of 52 H. 3. to prevent the deceiving of the Lords of their wardships by fraudulent conveyances or Leases of 18 E. 10. in the making of the statute of Quia emptores terrarum that the Feoffees or Purchasers of Lands holden of mesne Lords should hold by such services and Customes as rhe Feoffor did hold the Registring and Survey of Knights Fees by H. 2. H. 3. E. 1. E. 3. and H. 6. Escuage Aydes and Assessements in Parliament and the Marshals Rolls in time of War and necessity The esteem antiently held of the benefits and liberties accrewed by them insomuch as many have by leave of their Lords changed their Socage Tenures into Knights service and thought themselves enfranchised thereby The value put upon them by the Commons of England in the Parliament of 6. H. 4. when they petitioned the King in that Parliament that all Feoffements of Lands and Tenements holden by Knight service and done by Collusion expressed in the Statute of Marlbridge might upon proof thereof be utterly void The opinion of Chief Justice Fortescue in the raign of H. 6. in his Book de laudibus legum Angliae commending them as most necessary as well for the Common-wealth as for those and their Heirs who held their Land by such Tenures The retaining of it by the Germans who did as most of the Northern Nations saith Bodin libertatem spirare only busie themselves to gain and keep their liberty and from the time of their greatest freedom to rhis present and now also could never tell how to find any fault with them Their Princes Electors of the Empire and the Emperial Cities or Hanse townes who take thrmselves to be as free as their name of freedom or liberty doth import not at this day disdaining or repining at them the Switzers in their greatest thoughts of freedom taking their holding of the Empire in Capite to be no abatement of it The use of them by the antient Earles and Governours of Holland Zealand and West-freezland who having been very successful in their Wars without the use of Tenures in Capite or knights service but finding that ipsa virtus amara alioqui per se atque aspera praemiis excitanda videretur simul uti fisco ac Reipublicae consulerâ—tur saith Neostadius that the hardship of vertue needed to be sweetened with some rewards that the old custom of the Longobards in creating and reserving Tenures in Capite and by knights service would be not only a saving of Charges to their Treasury but a good and benefit to their Provinces or Common-wealth did create and erect such or the like Tenures And to this day by the Scotish Nation in a time and at the instant of their late obtaining if they could be thankful for them of all manner of liberties and freedom do sufficiently evince them to be as far from Slavery as they are always necessary Wherein if the primitive purpose and institution of Tenures in capite knight service and Socage be rightly considered every man may without any violence or Argument used to his reason or Judgment if self-conceitedness and obstinacy doe not choke or disturb his Intâ—lâ—â—ctuals Easily conclude whether if it were now 〈…〉 Choice he would not rather take Land by a Service or Condition only to go to warr with the King or his mesne Lord when Wars shall happen which in a Common course of accidents may happen but once or not at all in his life time then not tarry with him above forty days or less according to his proportion of Fee or Land holden to have escuage of his own Tenants if they shall refuse to go also in person with him and to have his heir if he chanced to die which in times of less Luxury happened not so often but once perhaps in three or four descents to be left in his minority to be better educated than he could have been in his life time married without disparagement and himself as well as his own Childrens estates protected Or accept of a Mannor freely granted him
to hold of the King by an honourable service of grand Serjeanty Then to hold in Socage and be â—yed to do yearly and oftner some part of Husbandry or drudgery upon his Lords Land for nothing or pay an annual Rent besiâ—â—â— many other serviâ—e payments duties as for Rent Oats rent Timber rent Wood Malâ— rent Hoâ—y rent for fishing liberty to Plow at certain seasons and the like And if they had been esteemed or taken to be a bondage the Commons of Eng. certainly in the Parliament of 1 R. 2. Would not by their Speaker have commended the Feats of Chivalry shewed to the King that thereby the people of England were of all Nations renoumed and how by the decay thereof the Honour of the Realm was and would dayly decrease Or in 9 H. 4. Petitioned the King that upon seisure of the Lands of such as be or should be attainted or grants of such Lands by the King the services therefore due to other Lords might thereupon be reserved The good and original benefit whereof derived to the Tenant from the King or mesne Lord that first gave the Lands and the consideration that by the taking of that a way every one was in all justice equity to be restored to his primitive propriety and that which was his own and so to reduce the Lands to the Heirs of those that at first gave them restraining them might be in all probability the reason that not only Capite and Knight service Tenures but Copyhold other Tenures and estates also having as much or more pretence or fancy of servitude in them were never so much as petitioned against in Parliament to be utterly taken away Some instance whereof may be had in that of Villinage which being the heaviest and most servile of all kind of Tenures though some thousand Families in this Kingdom there being antiently some Tenants in villenage belonging almost to every Mannor by desueâ—ude expiration of that course of Tenures now esteeming themselves nothing less were never in any Parliament desired to be abolished Bracton Fâ—eta other antient Authors in our English Laws alleging it to be de jure Gentium and that nihil detrahit libertaâ—i is not to be reckon'd a servitude much less surely then are Tenures in Capite and Knight service which the learned Grotius in the utmost that he could in his Book de antiquitate reipublicae Batavicae alleage for the freedom and independency of the Hollanders though he could not deny but that the German Emperours did claim them to hold in vassalage or as a Feiff oâ— the Empire will not allow to be any derogation from their liberty but concludes quod etsi optinerent non eo desinerent Hollandi esse liberi cum ut Proculus egregie demonstrat nec Clientes liberi esse desinant quia Patronis dignitate pares non sunt unde liberi feudi orta est appellatio That if it should be granted it would make the Hollanders not to be free when as Proculus very well demonstrateth Clients or vassails did not cease to be free because they are not equall to their Patrons in dignity whence the name or Term of franck Fee was derived and Sr. Henry Spelman saith quemadmodum igitur omnibus non licuit feudum dare ita nec omnibus accipere as it was not lawful for every one to give lands to hold of him so it was not allowed to every one to take prohibentur enim ignobiles servilisque conditionis homines et quidem juxta morem Heroicis seculis receptum munera subire militaria for ignoble and men of servile condition according to the usage of Heroick times were â—orbid to attempt military Offices and Imployments as may be evidenced also in those antient Customes and usages of those grand eminent Commonwealths of Rome and Athens in the latter of which notwithstanding the opinion of those who deny the use of Tenures by military service to have been in Greece before the time of Constantine Porphyrogenneta it appears that Solon had long before made a second classis or degree of such as could yearly dispend three hundred Bushels of Corn other liquid fruits were able to find a Horse of service called them Knights Soli igitur saith judicious Spelman nobiles feudorum susceptibiles erant quod praeâ—â—usticis et ignobilibus longe agiliores habiti sunt ad tractanda arma regendamque militiam And therefore the Nobility and Gentry were only capable of such Fees or Tenures in regard that they were more agile and fitter for the use of Arms and military Government and Order and was therefore called by the French heritages nobles et liberis et ingâ—nuis solummodo competunt a noble inheritance and only belonged to men that were free born and of ranâ—k and quality And wereâ—no longer ago than in Anno Dom. 1637. in the argument of the case of 〈◊〉 Ship-mony in the Exchecquer Chamber so little thought to be a Slavery to the people or any unjust or illegal prerogative of the Kings as Mr Oliver St. John none of the reverend and learned Judges of England then contradicting it alleaged them to be for the defence of the Realm and that they were not ex provisâ—one hominis not of mans provision but ex provisione legis ordained by Law and that the King was to have the benefit that accrewed by them with Wardships primer seisins Licences of Alienation and Reliefs as well to defend his Kingdom as to educate his Wards Nor can they be accounted to be a Bondage or Slavery unless we should fancy which would like a dream also vanish when men shall awake into their better senses and reason that those ornaments in peace and strength in time of war which have been for so many ages and Centuries since King Inas time which was in an 721 now above 940 years agoe and may have beene long before that ever accompted to be harmlesse and unblameable and in King Edgars Time by a Charter made by him unto Oswald Bishop of Worcester said to be constitutione antiquorum temporum of antient time before the date of that Charter were an oppression that all rankes and sorts of the People should endure a slavery and not know nor feel it nor any of the contemporary writers antient or modern take notice of it that the Peers of this Kingdom should be in Slavery and not know or believe it The The gentry of the Kingdom should be as worshipful Slaves and not understand or perceive it And the Commons of the Kingdom what kind of Slaves it should please any without any cause to stile them That Honours Gifts and Rewards Protection Liberties Privileges and Favours to live well and happily of free gift and without any money paid for the purchase should be called a Bondage when as a Tenure in Socage ut in condemnatos ultrices manus â—â—ttant ut alios suspendio aliâ—s membrâ—rum
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
part of the well being of the Nation not at once but at several times in several ages and several Generations support and uphold them by after Laws constitutions as That no Freeman should from thence give nor sell any more of his lands but so that of the residue of the lands the Lord of the fee may have the services due unto him which belongeth to the Fee Lands aliened in mortmaine shall accrew to the Lord of the Fee 9 H. 3. ca. 32. 36. the Ward shall pay to the Lord of the Fee the value of his marriage if he will not marry at the request of his Lord for the marriage of him that is within age say the Statute the makers thereof of meer right pertaineth to the Lord of the Fee 20. H. 3 cap. 7. The Lord shall not pay a Fine for distraining his Tenant for Services and â—ustomes 52. H. 3 cap. 3. A fraudulent conveyance to defeat the Lord of his ward shall be void cap. 6. The King shall have primer seisin neither the heir nor any other shall intrude into their Inheritance before he hath received it out of the Kings hands as the same Inheritance was wont to be taken out of his hands and his Ancestors in times past if the lands be accustomed to be in the Kings hands by Knight service or Serjeanty or right of Patronage 52. H. 3. cap. 16. If an heir marry within age without the consent of his Guardian before he be past the age of fourteen years it shall be done according as is contained in the statute of Merton and of them that marry after that age without the consent of their Guardian the Guardian shall have the double value of their marriage such as have withdrawn their marriage shall pay the full value to the Guardian for the trespass and nevertheless the King shall have like amends And if the wards of malice or by evil council will not be married by their chief Lords where they shall not be disparaged then the Lords may hold their lands and Inheritance until they have accomplished the age of an heir male that is to wit of twenty one years and further until they have taken the value of the marriage 3 E. 1.22 A Tenaent shall have a writ of mesne to acquit him of his services and if the mesne come not he shall loose the service of his Tenant 13 E. 1.9 Priority of Feoffment shall make a title for wardship cap. 16. the chief Lord shall have a Cessavit against the Tenant if he cease for two years to do his service writs of Ravishment degard allowed to the Lord and the Party offending though he restore the ward unmarried or pay for the marriage shall nevertheless be punished by two years Imprisonment 13 E. 1.35 The Feoffee shall hold his lands of the chief Lord and not of the Feoffor 18 E. 1. Quia emptores terrarum A saving to the King of the antient aydes due and accustomed 25. E. 1.6 The King shall have the wardship of his Tenant which holdeth in chief the marriage of the heir primer seisin assignement of dower to the widdow marriage of the women Tenants deviding their lands in Coparcinery holden of him and they which hold of him in Serjeanty shall pay a Fine at the Alienation 17. E. 2. A Free-man shall doe his homage to his Lord 17. E. 2. Knights Fees shall not pass in the Kings grants without special words 17 E. 2.16 he shall be answered the mesne rates of Lands coming to him by his Tenants death 28. E. 3.4 where sundry of the Kings Tenants holding of him immediately as of his Dutchy of Lancaster did by sundry Recoveries Fines and Feoffments in use defeat the King of Wardships of Body and Lands It was Enacted that the King and his Heirs shall have the Wardship and Custody of the Body and Lands of cestui que use and if they be of full age shall have relief notwithstanding any such conveyance and an exact provision made for Writs to be granted upon the imbesiling of any such Heir Rot. Parl. 22 E. 4. N. 16. 17. The Lord of Cestui que use no will being declared c. shall have a Writ of Right of Ward for the Body and Land and the Heir of Cestuique use being of full Age at the Death of his Auncestor shall pay a relief 4 H. 7.17 Avâ—wry may be made by the Lord upon the land holden of him without naming his Tenant 21 H. 8.19 And no grievance was thought be in them at the time of the making of the Act of Parliament of 27 H. 8 2. when as it was expresly provided by that Act that Tenures in Capite should be reserved to the King of all mannors lands and hereditaments belonging to Monasteries religious houses which had lands Tenements and hereditaments not exceeding the clear yearly value of two hundred pounds which he should afterwards grant for an estate of Inheritance nor did the Parliament in the 31 year of the raign of that King retract that good opinion which was formerly had of them when enacting that the King and his heirs and Successors should be put in actual possession of all mannors lands and hereditaments of any yearly value whatsoever belonging to Monasteries they saved to the King his heirs and Successors all rents services and other duties as if that act had never been made Nor in the Act of Parliament of 32 H. 8. cap. 46. For erection of the Court of wards and Liveries wherin it is acknowledged that Tenures in Capite and wardships with their incidents did of right belong to the King in the right of the Imperial Crown of this Realm In the Act of Parliament of 32. H. 8. And an explanation thereof in 34 and 35 H. 8.5 giving power to those that held lands in Capite and by Knights service to devise two parts thereof reserving to the King wardship primer seisin and Fines for alienation of the third part and Fines for alienations of the Freehold or Inheritance of the two parts The Crown being secured of the Tenure of the two parts by the statute of Quia emptores terrarum Nor at the making of the statutes of 35 H. 8.14 37 H. 8.2 Whereby the King might reserve Tenures in Socage or Capite at his will and pleasure upon grants of lands not exceeding the value of forty shillings per annum belonging to religious houses And that the Kings former right shall be saved notwithstanding any Traverse a remedy for the rents of the mesne Lords where the King hath the wardships 2 and 3 E. 6. cap. 8 And those that held by such Tenures besides the care of so many Acts of Parliament were not unhappy also in that provision of the Common Law where it was an Article or inquiry in the Eyre if any Lord novas levavit consuetudines had charged his Tenant with any new Customes if any Escheators or Subescheators had made any
vel quibuscunque illatis a multis retroactis temporibus et omnia inquisita sub sigillis suis inclusa secum coram Baronagio ad tempus sibi per breve praefixum Four Knights men of known worth and wisdom loving and beloved of their Countryes to enquire what grievances or oppressions the smaller sort of people suffered by the greater and also of all injuries and â—â—ongs done by any person whatsoever either lately or formerly and to certifie it under their Seals to the Barronage which what ever they were or if ever or never recorded for they have not for ought appears been certified or recorded no Record or Historian of that or the after times have said that Tenures in Capite and by Knights service were thereupon retorned to be oppressive or so much as inconvenient Neither are to be found amongst any of those huge heaps of evils which Mathew Paris that sower and honest Monk of St. Albons who lived in those times and especially remarked them hath delivered to posterity The 24 Reformers or Conservators of the Kingdom in that Kings Reign appointed by the Baronage never intimated any thing of their dislike of that honourable institution It was not complained of upon the refusal of Roger Bigod Earl of Norfolk Marshall of England Humphry Bohun Earl of Hereford and Essex Constable of England and Gilbert de Clare Earl of Glocester and Hertford great and mighty men and of Princely Estates to go at the Command of King E. 1. unto his Wars at Gascony upon pretence that the warning was to short whereby the Kings displeasure was so much incurred aâ— Bohun and Clare to escape the Seisure and forfeiture of their Lands and to purchase his favour again were glad each of them to marry one of his Daughters without any Dowry and surrender their Earldoms Honors Offices and Lands unto him take back Estates thereof in Tayle to them and the Heirs of their Bodies upon their wives to be severally begotten and Bigot surrendring also to him his Earledom and Marshals rod together with all his Lands and taking Back a grant of an Estate for life in his honors and Lands the reversion to the King if he should not have any Issue of his Body begotten the King in Parliament pardoned them and John de Ferrariâ—s and other Earls Barons Knights and Esquires and all other of their fellowship confederacy and Bond and all that held twenty pounds Land Per annum whether in chief of the King or other that were appointed at a certain day to pass over with him into Flanders their rancour and evil will and all other offences committed against him Were not in the Roll of general grievances which the Arch-Bishops Bishops Eaâ—ls Barons and Commons sent him when he was at the Sea side ready to take shipping into Gascoigne concerning his Taxes and other impositions Neither any vestigia or footsteps to be found of any grievance by them in that grand search or inquiry by the Commissions of Traile Baston in or about the 33 of E. 3. after intruders into other mens Lands exactions and oppressions or in the presentments in the Eyres when the Justices thereof in several Kings reigns carefully travailed into the several Counties and places of England and found out and returned the complaints and oppressions of every County and where the Natives themselves the witnesses cannot be supposed to be so much their own enemies as to conceal the Countries oppressions the Jurors were solemnly charged to present them upon their Oaths and if they should omit to do it had the malice of their Neighbours to watch accuse their Perjuries and the severity of the Judges to punish any failings in their duty Or in the Reformation which the Lords Ordainers as they were afterwards called in or about the fifth year of the Raign of King E. 2. pretended to make in that unadvised Commission which he granted them for the Government of the Kingdome No pretence or so much as a murmur against them by the Reformers in Wat Tylers and Jack Straws commotion when they were so willing to overthrow and extirpate all the Nobility and Gentry which should withstand their rude and unruly designs of making all Bondmen free and taking away Villenage and of making Wat Tyler and several other of their party Kings in several Counties and to devise what Laws they listed Or by Jack Cade or Captain Mend-all as he falsely stiled himself when many a grievance was picked up to colour his Rebellion in the reign of King H. 6. but could find nothing of that for a garnish of his Roguery Or Robert Ket the Tanner in the reign of King E. 6. sitting in judgment amongst the Rabble under his tree as they called it of Reformation where Tenures and Wardships being so obvious and every where insisted upon they would not probably have omitted them out of the Roll or list of their complaints if there could have been but a supposition or dream of any grievance in them which being the more noble beneficial and better sort of Tenures may better deserve an approbation of the People and Parliaments of England than Tenures in Villenage which by an Act of Parliament in 25 E. 3.18 may be pleaded and a Villain seized though a libertate probaâ—dâ— be depending And it was enacted in the Parliament of 9 R. 2.2 that if Villaines fled into places infranchised and sued their Lords their Lords should not be barred thereby and by an Act Parliament in 8 H. 6.11 that a Villain should not be admitted or put to be an Apprentice in the City of London and by an Act of Parliament in 19. H. 7.15 If any Bond-man purchase Lands and convey away the Lands the Bond-man being â—estui que use of thâ—se Lands they shall be seised by the Lord. Nor did the Act of Parliament of 25 E. 3. which provided that none should be constrained to find men of Armes Hâ—blers nor Archers but by common assent and grant made in Parliament mistake when it inserted a saving and exception of all those that held by such services Neither did the Commons in the Parliament of 5 R. 2. upon the Repeal in Parliament of the Manumissions of Bond-men extorted from the King by Wat Tyler and his Rout or men of Reformation think they did themselves or those they represented any hurt when they cryed with one voyce that the Repeal was good and that at their request the Repeal was by whole assent confirmed Tenures in Capite and by Knights service were not complained of in the Parliament of 13 R. 2. though the Commons in Parliament had prayed and were allowed that euery man might complain of the oppression of what person or Estate soever without incurring the pain of the Statute of Gloucester which under great penalties prohibited false Newes and Lies of the Nobility and great men of the Realm Chancellor Treasurer Justices of both Benches and other great
Officers of the Bench made in the second year of the King Nor was there so much as an Apprehension of any evil in them in the Parliament of 4 H. 4. where the Commons pray that The Act of Parliament of the 1 of E. 3. that none shall be distrained to go out of their Counties but only for the Cause of necessity of suddain coming of strange Enemies into the Realm and the Statute made in the 18 th year of the Reign of the said King That men of Armes Hoblers and Archers chosen to go in the Kings Service out of England shall be at the Kings wages from the day that they do depart out of the Counties where they were chosen and also that the Statute made in the 25 th year of the Raign of the said King that none be compelled to find Men of Arms Hoblers nor Archers other than those which hold by such services unlesse it be by common assent and grant made in Parliament be firmly holden and kept in all points it was upon the granting of their desires and an Act of Parliament made for that purposâ— as the Declaration of the Lords and Commons in Parliament against the Kings Commission of Array in an 1642 mentioneth especially provided that by force or colour of the said supplication nor of any Statute thereupon to be made the Lords nor any other that have Lands or Possessions in the Counties of Wales or in the Marches thereof shall in no wise be excused of their Services and Devoires due of their said Lands and Possessions nor of any other Devoier or things whereunto they or any of them be especially bound to the King though that the same Lords and others have other Lands and Possessions within the Realm of England nor that the Lords or other of what Estate or Condition soever they be that hold by Esâ—uage or other Services due to the King any Lands and Possessions within the said Realm be no way excused to do their Services and Devoirs due of the said Lands and Possessions nor that the Lords Knights Esquires nor other Persons of what Estate or Condition they be which hold and have of the Grant or Confirmation of the King Lands Possessions Fees Annuities Pensions or other yearly profits be not excused to do their Services to the King in such manner as they are bound because of the Lands Possessions Fees Annuities Pensions or Profits afâ—resaid And might challenge their quietus est or Proclamation of acquittall when there were no complaints made against them in the former ages when there were so many Taxes laid upon Knights Fees as 20 shillings then a great sum of money as much almost as 20 markes is now upon every Knights Fee imposed by King R. 1. toward his ransome 26 s. 8 d. upon every Knights Fee by King Iohn and another also of the same sum towards his expedition into Wales 20 s. upon every Knights Fee towards his Charges in Normandy an Escuage of 20 s. upon every Knights Fee to be paid the one half at Easter and the other at Michaelmas besides the Escuage which he had upon the marriage of his Sister Isabel to the Emperor Frederick two Escuages imposed by H. 3. and an Escuage upon the marriage of his Daughter the Lady Margaret to Alexander King of Scots 20 s. of every Knights Fee by H. 4. the many services in person done by those which held in capite and Knights Service in forinseco servitio in all the expeditions and Wars in France from the time of the Norman Conquest to the end of the Raign of E. 4. and at home in the Wars betwixt England and Wales and betwixt England and the Scots where very many Inhabitants of the Counties of Cumberland Westmeâ—land and Northumberland that held by Cornage a kind of Knight Service to blow a horn upon the invasion or incursion of the Scots and to help to repell them and had their Lands sometimes at the Will of the Lords conferred and given to the younger and more lusty Sons who were able to undergo that service could before King James his accession to the Crown of England the pacification of the English and Scottish hostilities placing them under one obedience scarce rest in their beds by reason of the Scots sudain or nightly alarmes and depredations driving or stealing their Cattell and spoiling all that they had And in all the troubles of England before and since the Barons Wars upon any Rebellions and inquietudes of the people when those that held by Knight service were frequently and hastily summoned to come to the King cum Equis Armis and the great charges trouble hazard and expences which the Lords Mâ—sne were put unto by Assessements of Escuage and otherwise And that immediately upon the death of the Kings Tenants in capite by Knight Service the Escheators did usually seise not only the Lands of the greatest of the Nobility Gentry and meaner men But the Stock and Cattell upon their grounds and the Goods in their Houses insomuch as their Executors were many times constrained to Petition and obtain the Kings Writs and Allowance to have the Stock and personal Estate delivered unto them And yet no complaints made at all against those Tenures or necessary defences of the Kingdome nor against Tenures by grand or Petit Serjeanty in the thirty confirmations of our Magna Charta upon as often Breaches to be supposed of it Never complained off in the making of thirty six Acts of Parliament concerning Wardships and Tenures in the several times and Ages from 8 H. 3. to this present nor at the making of the Act of Parliament in 32 H. 8. for the erection of the Court of Wards Nor in so many thousand Petitions which have been in 186. several Parliaments for almost four hundred years last past or before 9 H. 3. or ever since this nation could remember any thing either in our Parliaments Micel-gemots Wittena-gemots conventus sapientum or Magna Concilia where all the Grievances and Complaints of the people not to be remedied else where came as to the Pool of Bethesda for help and relief and wherein if any in some one or more Parliaments should so much neglect their duty and the more than ordinary business and concernments of their Kings themselves and Countries with which they were intrusted and to which their Oaths of Allegiance if nothing else must needs be their Monitors it cannot without a supposition and belief which will never be able to find entertainment in any rational mans understanding be imagined that the whole Nation for so many Ages past and in so many Assemblies of those that should be the Sons of Wisdome should be bound up under such a fate of Stupidity or Ignorance as to represent those that were sick and not know of it or that all or any of them should propter imbecillitatem vel pernegligentiam by a to be pitied weakness or negligence not either seek or
find the way to the ears or audience of so many worthy and just Kings and Princes as this Kingdom hath been happy in who would have been as willing to give a remedy as they could have been to seek it if there had been any ground or cause for it that so many Petitions of small concernments or of no greater consequence than for the paving of Streets killing of Crows not taking of young Herns out of their nests without license of the owner of the ground and the like should get admittance and cause Acts of Parliament to be made thereupon and that of Tenures in Capite if any grievance could at all be found in them and of so long a continuance which usually makes light burthens to be heavy should be so dipped in a Lethe or Oblivion as not at all to be remembred Which had nothing at all of grievance in their essence or being understood of them in the making of the Statute of 1 H. 8. against Empson and Dudley by whom the Kings Subjects had been sore hurt troubled and greived in causing untrue Offices to be found retorning of Offices that never were found and in changing Offices that were found No Grievance perceived to be in them in Primo Jacobi when in the Statute concerning Respites of Homage there was a Proviso that in case it shall be thought fit for the true knowledge and preservation of the Tenures appertaining to the Crown and so ordered in the open Court of Exchequer that proces should issue out of the said Court against any came not within the Suspition or Jealousy of a Grievance when in the Parliament of 7. Jacobi Regis Sr. Francis Bacon then his Majesties Sollicitor in his speech as one of the House of Commons in Parliament to the Lords in Parliament perswading them to joyn with the Commons to Petition the King to obtain liberty to treat of a Composition with his Majesty for Wards and Tenures acknowledged in the name of that Parliament that the Tree of Tenures was planted into the Prerogative by the Antient Common Law of England fenced in and preserved by many Statutes and yeildeth to the King the fruit of a great Revenue and that is was a noble Protection that the young Birds of the Nobility and good Families should be gathered and clucked under the Wings of the Crown Nor in Primo Car. primi in the Act of Parliament touching the rating of Officers Fees in the Exchequer upon pleadings of Licences or Pardons for Alienations when the Lords and Commons in that Parliament assembled did declare that the Kings Tenures are a Principal flower of the Crown which being in England the safety and protection of the people cannot be said or proved to be adorned by their sorrows and miseries and ought not to be concealed And that in the petition of Right in 3 Car. primi wherein all the Grievances and Burdens of the Subjects and breaches of Laws and Liberties that any way concerned them or their Posterities were enumerated and remedies for the future establishment of the quiet and happines of the people propounded and granted Tenures in Capite and Knight service with their incidents were not reckoned or accounted as Grievances though all that troubled the people were at that time so largly thought and beleived to be redrest as a publick joy upon the Kings granting of that Petition of Right was commanded to be celebrated by the Musique and ringing of Bells in every Parish Church of the Cities of London and Westminster which vied each with other who should proclaim and tell their joyes the loudest And the blaze of numberless Bonfires representing the flame of the peoples affection towards a most gracious Soveraign seemed to turn the sullen night into a morning or day which the Sun beams had newly guilded whilst Alecto and her Sister Furies despairing in their hopes of kindling a sedition and bringing the miseries of a Civil War upon us had thrown by their Torches and employed their Hellish griefs in the tearing of their Snakie loâ—ks Were no Sirtes or Rocks to shipwrack or hurt the people when Sr. Edward Coke who was so willing to have Tenures in Capite and Knight service to be changed into Tenures by Fealty only as of some of the Kings Honors and all their Incidents as Wardships primer seisin Licences of Alienation c. taken away and recompenced by a greater yearly profit then was then had or received by them and a rent to be inseperably annexed to the Crown with some necessary Covenants and Privisoes as he hoped that so good a motion as had been made in the Parliament of 18 Jacobi tending as he thought to the Honor and Profit of the King and his Crown for ever and the quiet and freedome of his Subjects and their Posterities would one way or other by the grace of God and Authority of Parliament take effect and be established could not but acknowledge between Anno 3. Car. Regis primi and the 12 th year of his raign that the Objection that Wardship was a Badge of servitude which would be a Grievance indeed and of the greatest Magnitude was groundless and without a Foundation for that the King by taking money for the marriage of the Ward doth it not as for a Ransome but taketh such moderate sums of money as in respect of the quality and state of the Ward He or She all circumstances considered is able to pay and in regard thereof hath the protection of the Court of Wards during Minority And giving Tenures by Knight service no worse a Character than the Wisdome of Antiquity for his Iustification therein citeth a place out of the Red Book in the Exchequer where it is said that mavult enim princeps domesticos quam Stipendiarios Bellicis apponere casibus the King had rather be served by his own Subjects than Hirelings or Stipendary Souldiers No Scylla or Charybdis taken to be in them in the Parl. of 17. Car. prim at the making of the Act for the better raising and levying of Souldiers for the present defence of the Kingdomes of England and Ireland wherein it being said that by the Laws of this Realm none of his Majesties Subjects ought to be impressed or compelled to goe out of his Country to serve as a Souldier in the Wars they excepted cases of necessity of the sodain coming in of strange enemies into the Kingdome or where they be otherwise bound by the Tenure of their Lands or Possessions In the Remonstrance of the House of Commons 15. December 1641. and that unhappy Amasse and collection of Complaints against the Government the Tenures themselves were not so much as complained of but the exceeding of the Jurisdiction of the Court of Wards that thereby the estates of many Families were weakned some ruined by excessive Fines for Composition for Wardships exacted from them which if in some few particulars where the Estate it self was weak or incumbred with
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
of Gold over him with four Staves and four Bells at the four corners every Staff having four of those Barons to bear it Also to Dine and sit at the Table next to the King on his right hand in the Hall the day of his Coronation And for their Fees to have the said Canopy of Gold with the Bells and Staves Or that at the Coronation of Eliâ—nor Wife to King Henry the third Marchiones de Marchia Walliae videlicet Joannes filius Alani Radulphus de mâ—râ—uo mari Joannes de Monmouth et Walterus de Clifford nomine Marchiae jus Marchiae esse dicebant hastas argenteas inveniendi et las deferendi ad sustentandum pannum Sericum quadratum purpureum in Coronatione Regum et Reginarum Angliae The Lords Marchers of Wales videl Iohn Fitz Alan Rafe de Mortimer Iohn de Monmouth and Walter de Clifford in behalf of the Marches did claim and alleage it to be their right to provide silver Spears or Launces and with them to bear or carry a four square Canopy of Purple Silk over the Kings and Queens of England at their Coronation For those Tenures in grand serjeanty were ever as in all reason they deserved to be accompted to be so honourable as some have made it their Sir-name as the noble Earls of Ormond in Ireland descended from an antient and worthy English Family have done who carry in their Coat of Armes or part of their now marks of honour or bearing the Symbols or remembrance of the Office of cheif Butler in Ireland which with the prisage which is a part of it hath by King E. the 3 d. been granted to the Ancestors of the now Marquesse Earl of Ormond by Inheritance and a Knightly and good Family of the Chamberlaines in England do account it no dishonour to have been descended from thâ— Earls of Tankervile who were Chamberlains to our King H. 1. in Normandy And some branches of the noble Family of the Grey's of Wilton being antient Barons of England holding the Mannor of Waddon in Buckinghamshire of the King per servitium custodiendi unum Gerfalconem Domini Regis by the service of keeping a Gerfalcon of the Kings do use or bear as a badge or marque of honour in their Armes a Gerfaulcon the Mannor of Wymondley in the County of Hertford being holden of the King by Grand serjeanty of giving to the King the first Cup of Wine or Beer upon the day of his Coronation The Family of Argentons being by the marriage of a Daughter and Heir of the Lord Fitz Tece become at the Conquest the possessors of it have thought it honourable saith Camden to bear in their Shields in memory thereof three Cups argent in a feild Gules No oppression to the people of England to be kept safe in their peace and plenty from the Incursions of Foreign Enemies when William the Conquerour fortified Dover a strong and principal Bulwark betwixt England and France with whom we had then continual Wars or Jealousies and gave to Iohn Fines then a Noble Man of great prowesse and fidelity the Custody of that and the rest of the Cinque-Ports with 56 Knights Fees willing him as that Learned Antiquary Mr. Lambard tells us to communicate some parts of that gift to such other valiant and trusty persons as he should best like of for the more sure conservation of that most noble and precious Fort and Castle Who thereupon imparting liberally out of those Lands to eight worthy Knights viz. William of Albrance Fulbert of Dover William Arsick Geffery Peverel William Mainemouth Robert Porthe Robert Crevequer and Adam Fitz-Williams bound them and their Heirs by Tenure of their Lands received of the King to maintain 112 Souldiers amongst them which were so devided by Months of the years as five and twenty of them were continually to watch and ward within the Castle for their several parts of time and all the rest ready upon necessity each of which eight Knights had their several Charges in several Towers and Bulwarks and were contented as well they might at their own dispence to maintain and repair the same Of whom diverse of the Towers and Bulwarks do yet or did but in Queen Elizabeths reign bear their names No inconvenience or mischief to the publique that the Castle and Barony of Abergavenny in Monmouthshire was holden by John Hastings per Homâ—gâ—â—m Wardam Maritagium cum accideâ—it sâ— guerra fuerit inter Regem Angliae Principem Walliae deberet custodire patriam de Over went sumptibus proprijs meliori modo quo poterit pro commodo suo utilitate Regis defensione Regni Angliae by Homage Ward and Marriage when it should happen and if War should be between the King of England and the Prince of Wales was to guard at his own charges the Country called Over went the best way that he could for his profit and benefit of the King and defence of the Kingdom of England No cause of complaint to the Town or antiently called City of Leicester for that veteri Instituto by antient Custom they were to furnish the King with twelve Burgesses or Townsmen when he went to War and iâ— per Mare in Hostes ibat mittebant quatuor Equos usque Londinum ad arma comportanda vel alia quae opus essent he went by Sea were to send four Horses as far as London to carry his Arms or other necessaries Nor to the Town of Warwick to be enjoyned by Tenure to send twelve of their Burgesses or Towns-men with their King to War and qui monitus non ibat centum solidos Regi emendabat he which was summoned and did not go was to forfeit pay one hundred shillings to the King And cum contra Hostes per Mare ibat Rex quatuor Botesuenas vel quatuor libras denariorum mittebant when the King should bo by Sea against his Enemies should furnish four Boat-Swains or Marriners or send four pounds in money No harm done to give Lands at Seaton which Sr. Richard Rockslye Knight did hold by Serjeanty to be vantrarius Regis the Kings fore-footman when he went into Gascoigne donec per usus fuit parisolutarum precij 4d untill he had worn out a pair of Shoes of four pence then the price of a pair of Shooes for a worthy man not 4 s. 6. or 5 s. as they are now Or Lands to another to furnish duos Aâ—migeros two Esquires to march in his Vant-Guard upon occasion of War with the Welch Or that the Princes of Wales ab antiquis temporibus very antiently did hold that Principality and part of Brittain of the Kings of England in Capite by Military or Knight Service and that upon that ground only as he was a leige man and subject of England Leoline Prince of Wales was for raising of War against his Superior Lord imprisoned and hanged or beheaded by King E. 1. and the Principality of Wales
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
injury and gratitude and due acknowledgement for Subsistance Lively-hood and Liberty be made a cause of complaint every thing that gives the people not a Liberty to undoe cheat and ruine one another be called though it never deserved it a grievance it must and may well remain a wonder never to be satisfied how Tenures in Capite and by Knight service which until these distempered times had no complaint made of them nor could ever be proved to be any publique or general mischief or inconveniences for seldom or as to some particulars there may be in the best of Institutions or the most eminent or excellent of sublunary thingsâ— or actions something of trouble or molestation should after so long an approbation of so many ages past without any reason given other then by a bargain for increase or making a constant Revenue to lessen the Majesty and just power of our Kings which the Parliament will certainly endeavour all they can to uphold be now so unlucky as to be put and inclosed in the Skin of a Bear baited under the notion of a grievance and cryed down by a few and not many of the people as many other legal and beneficial constitutions have lately been by the vote and humour only of the common-people or a ruining Reformation which as to that particular was first occasioned by CHAP. IV. How the design of altering Tenures in Capite and Knight Service into Socage Tenures and dissolving the Court of Wards and Liveries and the Incidents and Revenue belonging thereunto came out of the Forges of some private mens imaginations to be afterwards agitated in Parliament OLD Sir Henry Vane the Father of young Sir Henry Vane who helped to steal away the Palladium of our happinesse and under the colour of sacrificing to Minerva or a needlesse Reformation was instrumental in bringing the Trojan Horse into our Senate like the crafty Sinon taught the people weary of their own happiness how to unlock him and to murder one another and massacre our Religion Laws and Liberties And Sir John Savil whose Son the Lord Savil afterwards Earl of Sussex was too busie and active in the hatching of our late Wars and troubles and some other men of design and invention perceiving about the first or second year of the reign of King Iames that his Revenue and Treasure by his over bounty to his people of Scotland and their necessitous importunities and cravings which is too much appropriate to that Nation were greatly exhausted did to sâ—rue themselves into some profitable actions and imployments upon a pretence of raising the King a constant Revenue of two hundred thousand pounds per annum propose the Dissolving of the Court of Wards and Liveries and the changing of Tenures in Capite and by Knight service into free and common Socage the only attempt and businesse whereof bringing some of them out of their Countries and colder stations into the warmth of several after Court preferments which like the opening of Pandoras Box proved afterwards to be very unhappy fatal to the most of all the kingdom but themselves and those that afterwards traded in the miseries and ruine of it It was in that Parliament after a large debate resolved saith Justice Iones in his argument of the Ship-money by the whole Parliament that such an Act to take away the Prerogative of Tenures in Capite would be void because it is inherent in the Crown it being again in the seventh year the eighteenth year of the reign of that King earnestly afterwards moved desired to be purchased of him and the King ready to grant it recomending it to the Parliament it was then found upon advice consultation with all the Judges of England to be of prejudicial consequence to the Subject as well as impossible in regard that all Lands as well as persons in the Kingdom being to acknowledge a Superiority if the old Tenures should be put down a new of a like nature might be again created and the recompence given for it still continue in the Crown as may be instanced in the Dane-gelt which continued here in England till the reign of King H. 1. long after this Nation was freed from the Danes and the Alcavalas or Cruzadas in Spain being a kind of Taxes there used and if new Tenures should not be created the old perhaps might be again assumed And with good reason was then denyed when King James was heard to tell his Son the late King Charles That such an yearly Revenue as was offered in lieu of those Tenures might make him a rich Prince but never a great and when so many Troops and Brigades of evils do march in the Rear or Company of that design which was so per se and non parâ—il as the necessity of Robert Duke of Normandies raising of money for want whereof he pawned that Dutchy for ten thousand pounds sterling to enable him in his voyage to Jerusalem to recover the holy Land the imprisonment troubles of K. Richard 1. in his return from thence and his ransom of one hundred thousand marks of silver raised by twenty shillings upon every Knights Fee the fourth part of the Revenues of the Clergy as well as the Laity with the tenth of their goods and the Chalices and Treasure which may tell us how litle money and more honesty England was then able to furnish of all the Churches taken as well here as in the Territories beyond the Seas to make up the sum those necessities which King John had upon him the great want of mony which his Son King H. 3. endured in the Barons wars when he was forced after sale of Lands and Jewels to pawn Gascoigne after that his Imperial Crown and Jewels to supply his wants having neither credit to borrow nor any more things to pawn could not deny his wants the gaging of the Jewels and Ornaments of St. Edwards Shrine and in the end as Sir Robert Cotton if he were the Author of the short view of the long life and reign of that King observeth not having means to defray the Dyet of his Court was constrained to break up House and as Mathew Paris saith with his Queen and Children cum Abbatibus Prioribus satis humiliter hospitia prandia quaerere to demand entertainment and Dyet at some Abbies and Priories and confessed to the Abbot of Peterburgh when he came to borrow money of him majorem Elâ—emosinam fâ—re sibi juvamen pecuniare quam alicui ostiatim mendicanti that it would be a greater act of Charity to lend or give him money then to one that begs from door to door Could never perswade them to any such remedies worse then their diseases nor did the unruly Barons of King H. 3. when they had him or his Father K. John at the most disadvantages ever demand it of them or any English man untill the beginning of the reign of King James
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
by the Family of the Dymocks in Lincolnshire and very many others holding by divers other grand Serjeanties Prejudice the Families of Cornwal Hilton and Venables who though not priviledged and allowed to sit as Peers in Parliament are by an antient custome and prescription allowed to use the Title of Baron of Burford Baron Hilton and Baron of Kinderton because they hold their Lands per Baronâ—am Disparage the Esquires and Gentry of England the first sort of which being as antiently as the dayes of the Emperour Julian called Scutarii of their bearing of shields in the Wars and the other as our excellently learned Mr. Selden teacheth us called Gentlemen a gente or the stock out of which they were derived or because they were ex origine gentis of noble kind distinguished from them whom Horace termeth sine gente or that they had servile Auncestors had by their fears and prowess in War not only gained great reputation but Lands given to them and their Heirs for their reward support and maintenance from which custome and usage amongst the Romaâ—s saâ—th Pasquier the French in imitation of the Gaules did call those Esquires Genâ—â—â—men Quilz viâ—â—ent estre pourvâ—uz de tels benefices whom they did see so provided with those benefices or rewards Et pour autant quilz veterent ceux cy n' estre chargez d' aucune redevance pecuâ—iare à raison de leurs terres benificiales envers le Prince et outre plus qu'a l' occasion d'icelles ils devoient prendre les armes pour la protection et dâ—ffense de Royaume le peuple commenca de fonder le seul et unique degrè de noblesse sur telle maniere de gens â—or that they did see that they were not charged with any Assessement in money to the Prince by reason of the Tenures of their Lands and that therefore they were upon all occasions to take Armes for the protection and defence of the Realm the people took them to be a degree of Nobility as appeareth by the stature of 1 E. 2. touching such as ought to be Knights and came not to receive that order Take away a great part of the root and foundation of the Equestris ordo and antient and honourable degree of Knighthood in England which was derived and took its beginning from the service of their Lands which were military for the cheif Gentlemen or Free-holdes of every County in regard they usually held by Knights service saith the learned Selden were called Chivalers in the statute of W. 1. touching Coroners and was so honourable a Title as the name of Chivaler was antiently given to every temporal Baron whether he were dubbed a Knight or no. Blast and enernate that also of our not long agoe instituted order of Baronetts which are though there be no Tenure expressed in their Patents held by service in War and a more noble Tenure then Socage Take away the cause and original of that antiently very eminent degree of Banneret when as such as hold Lands in Capite and by Knight service and had many Tenants also holding of them by Knight service were able in a more then ordinary manner to do their King and Country service by bringing their own Banner in the Feild which was to be displaced by the King or his Leivetenant Make our heretofore famous English Nation in matters of Armes and feats of Chivalry to be as a Pastoritium or agreste genus hominum to be Rusticks and Plowmen which the followers of Romulus which were many of them but Rubulâ—i et opiliones Sheppheards and Heardsmen did not take to be a degree worthy the Founders of that great Empire of Rome nor could be content with any lesâ— then that of their Patricij or Equites Senaâ—ors or Knights And was therefore called Feudum nâ—bile et cognoscitur mulâ—is privilegiis inhaerentibus viz. Gardia Fidelitas Homagium Curia Consuetudinâ—s Jurisdictio in Vassallos Banni et retrobannâ— privilegium jus Columbarij jus molendini c. A noble Fee which hath many priviledges belonging to it viz. Wardship Fealty Homage a Court Customes Jurisdiction over Tenants priviledge of Ban and Arriere Ban calling them to War in defence of their Prince a right to have a Dove-house and a Mill the two latter of which others could not heretofore build or enjoy without the Kings licence Equibus liquet ingentem maneriorum nostrorum multitudinem Normannis enim abunde auctam videmus ex privilegiis ad feuda militaria olim spectantibus originem sumpsisse by which it is manifest that our great number of Mannors came to be abundantly increased by the Normans and took their begining from the priviledges belonging to Knights Fees Take away all the Mannors and Court Barons of the Kingdome which being before the statute of Quia emptores terrarum created by the Lords who parcelled out the Lands which the King had before given them to several Friends or Tenants to be held of them and their Heirs by Knight service and some other part in Socage to plow their Lands and carry their Hay c. and to do suit to the Courts of which the Free-holders are said to be the Homage holden for their Mannor in whose Jurisdiction the Lands do lye and are no small part of the legal and necessary priviledges and power of the Gentry or Lords of Mannors over their Tenants which were as Sr. Edward Coke saith given them for the defence of the Kingdome and doe not only very much conduce to the well ordering of their Tenants but to the universal peace and welfare of the Nation in their inferior Orbes and Motions subordinate to the higher Were all at the first derived out of Knight service as evidently appears by Edward the Confessors Laws wherein it was ordained that Barones qui suam habent Curiam de suis hominibus which have their Court consisting of their men and Tenants Et qui Sacham et Socam habent id est Curiam et Jurisdictionem super Vassallis suis have a Court and Jurisdiction over their Tenants are to doe right to their Tenants and by the fall of those many thousand Mannors Court Barons in the Kingdoms which will at the same time dye and perish with the Tenures in Capite and by Knight service Extinguish the Copyhold Estates which belong unto them which by the destruction of the Mannors and Court Barons will also fall for as there can be no Court Baron without Freeholders so no customary Court without Copiholders And once lost or but altered cannot be created again for that now a Subject cannot make a Mannor which must be part in demesnes and part in services to hold of him by services and Suit of Court which is to be by a long continuance of time a tempore cujus contrarij memoria hominum non existit and if there be no Court the Customary Tenants or Copiholders cannot enter their Plaints make Surrenders
worthily reckoned to be honoris species exercitium nobile proprium nobilium a degree or part of honor a noble exercise and proper breeding for Nobility hinc militum nomen in Jure feudali pro nobili usurpatur and thence a Knight was in the feudal Laws taken and used for a Nobleman and though Hector Boethius calleth equites Barons speaking of those that paid for Wardship and releifs to Malcolme the King of Scots yet Sir Henry Spelman is cleerly of opinion that Miles quem ea tempestate Baronem vocabant non a militari cingulo quo equites creabantur sed a militari feudo quo alâ—â—s possessor libere tenens nuncupatus est nomen sumpsit that a Knight which in those â—imes they called a Baron was not so called from the Military Belt or Girdle by which they were created but took his title or denomination from the Knights Fee of which he was otherwise caâ—led Possessor or free Tenant had jus Annulorum amongst the Romans a right to wear Rings and was gradus ad Senatorium a step or means to be a Senator For Nobilium Ordo pro seminario munerum praecipuorum habetur quia liberaliter educati sapientiores esse censentur saith Besoldus the degree of Nobilitie hath been accompted to be the foundation or original of the greatest Offices or places for that being liberally and more then ordinaryly educated they were judged to be the wisest and therefore Comites or Earls being antiently in the reign of the Emperour Charlemain which was in anno Christi 806. if not long before praefecti Provinciarum qui Provincias Administrabant the Governours of Countries and Provinces under their Emperours and Kings were with Dukes also and Barons not only in France in those times but in Germany also afterwards inserted or put into the Matricula or Roll of the States of the Empire in Comitijs jus suffragij habuerunt and had voice or judicature in their Dyets or greatest Assemblies which corresponds with that more antient Custom amongst the Hebrewes in Gods once peculiar Commonwealth where the Princes of the twelve Tribes summo Magistratui in consilijs assidebant did assist the chief Magistrate in their great Counsels and Arumaeus as well as many other is of opinion that it was libertatis pars a great part of the peoples Liberties foâ— their good that deliberatio oâ—dinum consiliâ— authoritate quorum periculo res agitur suscipitur qui apud Principem in mâ—gna gâ—â—cia suâ—â— in those great Counsels Resolves should be made by those who should be inâ—â—ressed or pertakers in any dangers or misfortunes which should happen thereupon jure Comitiorum una perpetua privativa est mediata subjectio qua qui infectus est nec Comitiorum particeps esse potest That it is a Rule or Law in such Assemblies that those that sit there or have voice and suffrage in it are to hold immediately of the Empire and the Reasons of the first Institution of the Parliament of France composed of the Nobility by the antient Kings of France and King Pepin was as Pasquier that learned Advocate of France observeth in partem solicitudinis to assist their Kings for the better management of the Affairs of Government who did thereby communicate les Affaires publiques a leurs premiers et grandes seigneurs come si avec la monarchie ils eussent voulu entre mesler l'ordre d'vne Aristocratie et Governement de plusiâ—urs personnages d'honneâ—r the publique affairs to their chief and greatest Lords to the end to intermingle and blend with Monarchy the order and manner of an Aristocratie and Government by many personages of Honour et ne se mettre en hain des grandâ—s Seigneurs Potentats and not to draw upon them the envy of their great and mighty men Et â—estans les grands Seigneurs â—insi loâ—s unis se composa un corps general de toutes les Princes et Governeurs par l' advis desquels se viudereient non seulement les differents qui se presenteroient entre le Roy et eux mais entre le Roy et ses Subjects And the great Lords being so united composed and made one general body of all the princes and Governours of Provinces by whose advice and council not only the differences which should happen betwixt the King and them but between the King and his Subjects might be determined Et estoit l' usance de nos anciens Roys telle qu' es lieux ou la necessite les sumomioit se uvidojent ordinairement les affaires par assemblees generales des Barons and it was the usage of the antient French Kings in all cases of necessity most commonly to consult of their affairs in the general Assemblies of their Barons and accordingly by the directions of reason or of that and the more antient Governments amongst the Greekes in their great Council of Amphiction or of the Romans in their Senate our Saxon Kings did in Anno 712. which was almost one hundred years before the raign of the Emperour Charlemâ—in call to their Assemblies and great Councels for the enacting of Laws and redressing of Griveances their regni Scientissimos et Aldermannos Aldermen Earls or Governours of Provinces the wisest most knowing of the Kingdome thereâ—ore after the Conquest King John did at the request of the Barons not to call to his Parliaments the Barones minores the men of lesser estates which hoâ—d also in Capite promise under his great Seal Ut Archiepiscopos Abbares Comites et majores Barones Angliae sigillatem per literas summoniri faceret that he would severally summon to Parliaments the Arch-Bishops Abbotts Earls and greater Barons of England and that the lesser Barons were summoned or sat in Parliament falsum esse ipsa ratio suadet saith the no less Judicious than Learned Sr. Henry Spelman reason it self will not allow for a Truth when as there was as he observeth ingens multitudo a great number et plus minus 30000 quos nullo tecto convocari poterat and no less then 30000 which no one house was able to contain Quemadmodum itaque saith he nequâ— Barones ipsi consiliavè majores neque minores quempiam in Curiis suis ad Judicia ferenda de rebus sui Dominij admittant nisi Vassallos suos qui de ipsis immediate tenent hoc est milites suos et tenentes libere ita in summa Curia totius Regni nulli olim ad Judicia et Consilia administranda personaliter accersendi erant· nisi qui proximi essent a Rege ipsique arctioris fidei homagii vinculo conjuncti hoc est immediate vassalli sui As therefore neither the greater nor lesser Barons do admit any in their Courts to advise them or meddle with matters of Judicature concerning things belonging to their Estate or Jurisdiction but their Tenants and such as hold immediately 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
find Men Horses and Arms for the defence of the Kingdom which hath hitherto been a costly Knight Service and so far exceeding forty days Service at their own charges as they have besides the outrages free quarterings and plunder of Souldiers and losse of their debts by the ruine and death of their Debtors born the trouble of forty Six moneths continual Assessements far exceeding the Escuage and all the Taxes in 600 years before laid upon our Fore-Fathers and the question will then be of no great difficulty whether will be the better the old way or the new And when the King shall be as he ought to be the Judge of dangers or necessities and want the Assistance of his Subjects and it cannot when the Tenures in Capite and by Knight Service shall be taken away be pretended as it was in the Case of the Ship-money that his Tenures and Wardships were to defend him and the Kingdom in cases of danger and invasion untill a Parliamens could be Assembled Or shall as his late Royal Father was in the later end of the year 1642. when the long shut up Janus Temple had by the Salij or Priests of Mars been against his will broken open and the miseries or troubles of War overwhelmed him and his loyal people and the Plowers made Furrowes upon his back being hindred from putting his Commissions of Array in Execution be told by the Parliaments Declaration that his Tenures in Capite and their incidents and not his Commission of Array were the allowed and ordinary means for his defence until more could be obtained from the Parliament and shall have no military Tenures but only 100000 l. per annum or if that should faâ—l him Or he shall need to transport an Army into an Enemies Country to keep off or hinder an Invasion succour or back his Allies whilst they imbroil or weaken his common enemies shall be told that he may not impresse any men or Souldiers to go out of their Countries unlesse he can do it by order of Parliament or perswade them that there is a great necessity Whether he will not when the people shall cry unto him as the woman that had in the siege of Samaria boyled her Child eat of it Help my Lord O King shall not be able to doe any more then answer as he did Whence shall I help thee 2 Reg 6.26 27. And finds himself as his noble Progenitor King Ed. the 3. publiquely declared in a Writ of Error wherein Blanch the Wife of Thomas Wake of Lidal was Complainant that he was Ratione dignitatis in exhibitione justitiae quibuscunque de regno debitor ad statutâ— Progenitorum facta observanda vinculo juramenti astrictus by reason of his Kingly dignity a Debtor to every one of his Kingdom in the doing of Justice and bound by his oath to observe the Laws of his Progenitors in the care of himself and his people whom he is by his Coronation Oath bound to defend and protect and of the Salus Populi ne quid detrimenti Respublica capiat for the safety of his People and to the end that the Commonwealth may receive no damage be inforced as it were to raise and keep a standing Army always in readinesse with Garrisons to protect both himself and his people And then it may be easily experimented whether is the better to have some that ought to bear the charges and burdens of their Tenures if they will enjoy their Lands or to have the whole Nation groan and lament under the burden of maintaining a standing Army and Garrisons by publique Assessements or to have the Nobility and Gentry of England and five or ten thousand men and all those that hold of them to attend them and be always in readinesse by the obligation of their Tenures without any charge to the publique or thirty thousand unruly Souldiers to be yearly or for ever maintained at the charge of the People An instance whereof we need not go further to look for then in Holland and Zeland whenas the Emperour Charles the fifth liveing out of the Country and Governing them by Regents or Deputies fearing least that Nation in re militari longo usu bellorum exercita being by long experience become Warlike and holding their Lands by Knight service simul ingenio soli quod natura depressum ac uliginosum tum incilibus passim Fossis lacâ—busque ac paludibus intercissum haud sanâ— faciles invasuro aditus confisa ad turbas ac seditionum praemia converteret together with the nature of the soyl which was flat and moorish and cut into many Ditches Lakes and litle Islands would not easily give him entrance if he should be put to invade them or send Forces to suppress any rebellion or that they confiding in such their strengths might prove seditious and abuse the benefits and intention of their Tenures did in a policy perhaps such as Cyrus is said to make use against the Lydians by giving way to their Vices and Luxury release if Cornelius Neostadius be not mistaken to them some of their military services for to this day the Emperors of Germany as their Countryman the learned Grotius confesseth doe claim the benefit of those antient feudal rights ea tamen lege ut fundi Clientelares publicis sunctionibus quibus hactenus immunes fuissent in posterum non secus atque patrimoniales obnoxij existerent upon condition that those Lands so holden should not as hitherto be free from publique charges and taxes but hereafter should doe as others did Which hath done both sides no good for those Dutch afterwards falling into discontents with some of their feirce and over rigid Governours did by necessity and for want of their Tenures and antient domestick military Aydes betake themselves to foreign Forces as they could hire them and have by force and continual warrs in that Country which hath for more then sixty years been a Cockpit for all Christendome and the hireling Souldiers of it not only brought great miseries and neighbour warrs upon themselves and all Christendome but so tired the Kings of Spain his Successors and wasted the wealth and profit of his West-Indies as he hath been enforced to make a peace with them and allow them to be a free State as they call it and a Republique Are themselves become of a very Active and Warlike Nation so Lourdish and unwarlike as they are only found to be men of Trade Fishing and Navigation filling their Country with many strong fortified walled Cities Towns Citadels and Garrisons and living under the shelter of a constant well paid and disciplined Army doe by the cunning of an universal Trade and Commerce with almost all the World and out doing all Nations herein carry the Eâ—cise on their backs and make the States Richer part but not the multitude or poorer the better for it and yet sometimes doe find the want of their former Tenures and the readiness of their aydes
innocent as useful Tenures in Capite and Knight service of bettering the condition of the Commonwealth and people increasing their Liberties and content and to maintain and keep them in a most happy peace and plenty which will never be done if the Sword and Scepter of the King shall only be like the Ensignes and Ornaments of Regality and made only to represent a Majestie there will another difficulty stand in the way and meet the design of doing it by Act of Parliament and offer this question to consideration Whether an Act of Parliament and the consent of the House of Peers the desire of all the Commons and People of England which must be understood to be signified by their Representatives and the Roy le veult the King giving life and breath and being to it can in the great power and respect which ever hath been by the Law and justly ought to be always attributed unto it Take away Tenures in Capite and by Knight service grand and Petit Sejeanties Homage and all other incidents belonging unto them or the right which the Nobility and Gentry and mesne Lords have to enjoy their Tenures by Knight service the incidents thereunto belonging Which howsoever that in many other things it hath been said that Consensus tollit errorem Conventiâ— vincit Legem Consents and Agreements are more binding then Law will by the Laws of God and Nature and Nations and the Laws of this Kingdom and the opinion of some eminent and learned Sages and Lawyers thereof be resolved in the Negative viz. CHAP. VII That Tenures in Capite and by Knight service holden of the King and the Homage and Incidents thereunto appertaining and the Right of the Mesne Lords cannot be dissolved or taken away by any Act of Parliament FOR that Gods Law and the Law of Nature and Nations have taken care not only to preserve the Rights of Soveraignity and the means and order of Government but the Rights property of every particular Subject do prohibit all injustice it is a Maxime or Aphorism undeniable that Laws made against the Word of God the Laws of Nature or which are impossible or contra bonos more 's right Reason or natural Equity will be void in themselves be the Seal or Stamp of Authority never so eminent And therefore if as the Law hath often determined that the Kings Charters are void and not pleadable by Law when they are repugnant to the Laws Acts of Parliament Maxims and reasonable Customs of the Realm that it is not in the Kings power by his Charter or last Will and Testament to grant away the Crown of England to another Prince or Potentate as it was resolved in the Case of the supposed grant of King Edward the Confessor to William Duke of Normandy and that grant of King John to the Pope to hold England and Ireland of him and that notwithstanding the grant made by William the Conquerour to Hugh Lupus of the Earldom of Chester tenendum per gladium and ita libere as the King himself did hold England the Earldom of Chester was holden of the King that the grant of King H. 2. to the Monks of St. Bartholomews in London that the Prior the Monks should be as free in their Church as the King was in his Crown was adjudged to be void for that the Prior and the Monks were but Subjects and that by the Law the King may no more denude himself of his Royal Superiority over his Subjects then his Subjects can renounce or avoid their subjection to their King and the reason why such or the like grants of the King by his Charter are void is not in regard it was granted without the consent of the people in Parliament but that it was in disherison of his Crown and disabling himself to govern or if he should by his grant exempt a man from paying his Debts or maintenance of hise Wife and Children the joyning of the Lords and Commons with him in an Act of Parliament would not make such a Law to be binding or obligatory And therefore the King cannot saith Dier release or grant a Tenure in Capite to any Subject Dier 44. when King Edward the 3 d. granted to the Black Prince his Son the grant of the Dutchy of Cornwal all Wards Marriages and Reliefs non obstante the Kings Prerogative it was adjudged that the Prince could not seise a Ward which held of the Kings Ward because it belonged to the King by his Prerogative And in 2 R. 2. Robert de Hauley Esquire being arrested and pursued upon an Action of Debt in Westminster Abby where he took Sanctuary was in the tumult slain at the high Altar when the Priest was singing high Masse And the offence and breach of priviledge as it was then pretended to be complained of in Parliament by the Arch-Bishop of Canterbury and the rest of the Prelates and Clergy and prayed that due satisfaction and amends might be made of so horrible a fact It was opposed by the Lords and Commons and they vouched Records and called to witness the Justices and others that were learned in rhe Lawes of the Land that in the Church of England it hath not been accustomed nor ought to have Immunity for Debt or Trespass or other Cause whatsoever except for Crime only And certain Doctors of Divinity Canon and Civil Lawes being thereupon sworn and examined before the King himself to speak the plain truth said upon mature and sound deliberation that in case of Debt Accompt or Trespass where a man is not to lose life or member no man ought to have Immunity in holy Church and said further in the highest expressions those times could afford that God saving his Perfection the Pope saving his Holiness nor any King or Prince can grant such a priviledge and that if the King should grant such a priviledge the Church is and ought to be favoured and nourished ought not to axcept of it whereof offence or occasion of offence may arise for it is a sin and occasion of offence saith the Record to delay a man willingly from his Debt or the just recovery of the same And if an Act of the Commons alone or of the Lords alone or of both together cannot amount to an Act of Parliament the King himself cannot grant away his Regality or Power or means of governing by his Charter or any Act which he can singly doe his concurrence with both the Lords and Commons can no more make an Act to confirme that which should not be done or granted then his own grant or Charter could have done or than if he and the House of Commons only had made an Act As it appeareth by the Ordinance which the Lords Ordainers so from thence called did obtain from Edward 2. whereby he delegated much of his Regal Authority unto them which was afterwards complained of in Parliament made void and the Authors or Lords Ordainers
punished for it hath been clearly asserted by eminent and learned Judges and Sages of the Law as the Lord cheif Justice Hobart Sr. Francis Bacon and Sr. Jonh Davis Attorney General to King James in Ireland that the Superlative power of Parliaments above all but the King is in some things for restrained as it cannot enact things against Right Reason or common Right or against the Lawes of God or Nature that a man shall be Judge in his own Case as that the King shall have no Subsidies whereby to defend himself and his people that Children shall not obey their Parents and the like And that Tenures in Capite and by Knight service are of so transcendent a nature and so radically in the Crown and Fundamental Lawes as no Act of Parliament can take it away or alter it and are so inseperable as Sr. John Davis saith that in a Parliament holden in England in the latter end of the raign of King James it was resolved by the House of Commons that the Wit of man could not frame an Act of Parliament whereby all Tenures of the Crown might be extinguished And Judge Hutton who in the Case of the Ship-money would allow the King no more Prerogative then what could not be denyed him did publicquely deliver it for Law which in that great and learned Assembly of Judges and Lawyers was not contradicted that Tenures in Capite are so inseperable in the Crown as the Parliament will not nor cannot sever them and the King cannot release them And such is the care for the defence of the Kingdome which belongeth inseperably to the King as Head or supream Protector so as if any Act of Parliament should enact that he should not defend the Kingdome or that he should have no aides from his Subjects to defend the Realm such Acts would not bind but would be void because they would be against all natural Reason And Judge Crooke also doth in his Argument against the Ship-money wherein he concurred with Justice Hutton alleage that if a statute were made that a King should not defend the Kingdome it were void being against Law and Reason And when a Parliament is called by the Kings Writ to preserve his Kingdom and Magna Charta so little intends that any future Parliament should alter or take away any Liberties granted or confirmed thereby or any fundamental Laws which are incorporate with the essence of Government as it hath been by several confirmations of it enacted that all Laws hereafter to be made to the contrary shall be Null and void and with good reason as to the King and Mesne Lords in the changing of their Tenures into Socage when as ex contractu obligatio and ex obligatione Actio should as well hold in those benificial pactions which were in the Creation of those Tenures betwixt the King Lords and Tenants as in Bonds Bills and Assumpsits or any other contracts whatsoever And is so great a part of right Reason in the opinion of Forreigners and according to the Law of Nature and Nations as in the German Empire though it hath heretofore lost much of its power and authority by the greatnesse of some of the Princes and the many Liberties and Priviledges granted to Cities Towns its remaining Prerogatives notwithstanding are said to be Jura Majestatis instar puncti divisionem non recipientia adeoque Imperatoris personae cohaerent ut nec volens ijs se abdicare aut alium in consortium vocare possit so inseperable as they are capable of no division and do so adhere unto the Emperors person as he cannot if he would renounce or transferre them over to any other And Bodiâ— that understood France very well saith that Si Princeps publica praedia cum imperio aut jurisdictione eo modo fruenda concesserit quo ipse fruetur etiam si Tabulis jura Majestatis excepta non fuerunt ipso jure tamen excepta judicantur if the King shall grant any of his Lands to hold as freely and with as much power and jurisdiction as he himself enjoyed it the jura Majestatis or Regalities are always adjudged and taken to be excepted though there be no reservation or exception in the Letters Patents And the Parliament of Paris were so careful of the Kings Rights in Governing as when Francis the first had granted to the Queen his Mother a Commission to pardon and restore condemned persons it declared that such a grant quum sine Majestatis diminutione communicari non possit seeing it could not be granted without diminution of his Royal Authority was void thereupon the Queen Mother intermedled no more therein The Conclusion WHen all therefore which can be but pretended against Tenures in Capite and by Knight service shall be put together and said and done they will come to no more then this The general Assessements for men and Horses and necessaries for War whether men will or no are a service incumbent upon every mans estate though they bought and purchased their Lands the Knight service which is now complained of is but where their Lands were given them for that purpose and ex pacto voluntate by Agreement For it hath allwayes been accompted to be no less than reason that qui sentit commodum sentire debet et onus the Rose and the Prickle must goe together and he that hath the profit may be well contented to doe something for it especially when it is no more then what he did agree to doe and beleived it to be a favour And if they now take those Lands to be a burden may if they please give themselves an ease by retorning of them to those that gave it And should not be murmured at or complained of when as those that live near the Sea doe live under a Charge or Imposition which is annual and sometimes very great upon all And in Holland are commanded and ordered yearly by the Dijck Graven or Magistrates appointed for that purpose to repair and amend their Sea walles Or as it is also in England by Direction of Law and Commissions of Sewers and doe but in that though their Lands were dearly paid for and not freely given as those doe which hold their Lands by Knight service and defend themselves by defending others And it will ever be a Rule and Maxime in Loyalty as well as in Law and right Reason that by the Lawes of God Nature and Nations as well as of England there is and ought to be a natural Allegiance to the King that Oaths of Allegiance and Supremacy doe enjoyn every Subject to defend his Prince and his just Rights and Jurisdictions And that the safety of every man in particular and his own discretion should advise him to it unless they will think it to be wisdome in the Citizens of Constantinople who in the Seige thereof would rather keep their money and riches for the Turks to plunder then help
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
that in a Parliament holden in the 14 th year of the raign of King Richard the 2 d. the Lords and Commons did pray the King that the Prerogative of Him and his Crown may be kept and that all things done or attempted to the contrary may be redressed and that the King might be as free as any of his Progenitors were which the King granting gave to it the force and power of an Act of Parlaiment And consider that the innovation of Laws or change of Customs are dangerous and as St Augustine saith non tam utilitate if there were any profit in them prosunt quam Novitâ—â—e perturbant do more hurt than good by their Novelty that it will be unsafe to take away or dig up foundations that where the inconveniences in the old Laws are not apparant and the conveniences to come by the new not infallible or not likely to deceive our expectation of them it will be perilous to change our Laws more perilous when they be many and most of all when they be fundamental That the more Power and Might is in the King to defend us the better will be the Ends which by the Means is intended and that therefore in the Parliament of 7 E. 1. the Prelates Earls Barons and the Commonaltie of the Realm did acknowledge that to the King it belonged of his Royal Signory streightly to defend force of Armour and all other force against the Peace and to punish them which shall do contrary according to the Laws and usages of the Realm and thereunto were bound to ayd their Soveraign Lord at all Seasons when need shall be that to make a Captain of a Cripple or a Constable which should keep the Peace in a Parish and be ready to repell any violence which should be offered to the Inhabitanâ—s to be blind or Bed-rid would not answer the End or bâ— for the Safety of those that expect it from him And that his Majesties opinion expressed in his Message or Declaration from Breda before his return into England is and ever will be a maxime composed of very great reason and truth that his Majesties just rights are the best preserver of the peoples Liberties And may believe before it be too late that to take away Tenures in Capite and introduce the inconveniences before mentioned will be but as a Prologue or usher to Levelling and the gate or entrance to the Agrarian Devices and the supposed Saints taking possession of the Estates of those which they call the wicked And that the laying by of Tenures in Capite and their services and making use of Mercenary and Mechanick Souldiers may help us to as many miseries and follies as we have pertaked of in our late troubles from our Servants make them to become our Masters and by inureing them to insolencies against others teach them how to domineer over the people which shall be their pay-Masters after that over Parliaments garbling and purging the House pulling out and putting in whom they please turn Legislators and Remonstrance makers from their head quarters make themselves not the Repairers of Breaches but the makers and causers of them ingrosse all the places and imployments of the Kingdom throw down Laws and Government create out of themselves and their own Party Mayors Generals to tyranize awe the people and abuse their Laws and Liberties and play the fools at Coffee-Houses with disputing and discoursing of Rotas and Balloting Boxes and which of their Whimsies and ignorant contrivances would best make a Government Committ Perjuries in abundance and make their oaths more changeable and lesse to be trusted then the Wind or Weather or a Lillies Almanack and make it their only businesse to enslave and insult over the people and Metamorphose them into as many shapes of baseness perjuries Hipocrisies dissembling and wickednesse as poverty hope of gain or to get or preserve estates though it be but to have Poliphemus his curtesie to be last of all ruined fear or flattery or an accursed ambition to raise an estate out of other mens miseries could perswade or draw them unto That the taking away of Tenures in Capite by Knight service is not desired by any universal or general Petition at all of the People that not one in every 20 of those that are concerned hold by those Tenures nor one in every 100 of those that hold by other Tenures and are not concerned do desire it That the injudicial and inconsiderate desires of a very few of the common people who doe sometimes as they have many times done in our late troubles and too late repented it out-do Children in asking Stones instead of Bread and Serpents for Fishes are not to be hearkened unto that the Surfets upon Liberty are many times very dangerous may prove as fatal unhappy though granted or asked with the best of intentions as that of giving great Sums of money to the Scots in the begining of our unhappy Wars calling their invasion a brotherly assistance or that of giving Liberty to the long Parliament not to dissolve without their consent That if Augustus Caesar when by his great Prudence he had put the broken peices of the Roman Republick which was Civilibus Discordiis lacerata wofully torn with civil Discords into a well composed Monarchy and blest the Empire a great part of the World with an universal Peace could find no better a way to fix and make it lasting then to put many of the Souldiers under a Gratitude and Concernment to love and cherish it by giving them Lands for Life or Inheritance to engage them to their former Duties when occasion should happen which saved the Charge and Trouble on all sides as well to the conquered as the conquering in maintaining Roman Legions made up of a Medley or Gallimausry of all manner of Nations It cannot now be good when the long lasting Monarchy of England hath been lately and lamentably torn into peeces to make up a Common-wealth could never be agreed upon to alter or take away a Course of constant and ordinary defence which hath been for so many Ages past the happy Support of this Antient Monarchy And that it could not have been any bad or likely to be unsuccessefull Policy but a means of an Establishment of our late Souldiers and Controullers had in the Allowance of their cheap purchases been tyed to Tenures by Knight Service for the Defence of the Kingdom as the late King of Sweden was to hold of the Empire by the Treaty of Munster And if that Bracton who was a Lord Chief Justice in the Reign of King H. 3. was of opinion that by a paâ—tition of Earldoms and Baronies deficeret Regnum quod ex Comitatibus Baronijs dicitur esse constitutum would ruine the Kingdom which is constituted of Earldoms and Baronies he would now certainly foresee greater Mischiefs and Inconveniencies in the taking away of Tenures in Capite and by Knight Service or changeing
to the King at Oxford to be treated upon by the Earl of Northumberland William Pierrepont Esq Sr. Wil. Armin Bulstrode Whitlock Esq their Commissioners There was nothing desired or proposed for the taking away of the Court of Wards or changing of Tenures but did conclude that if that which then was desired of the King should be granted the Royalty greatnes of his Throne would be supported by the loyal and bountyfull affections of his people their Liberties and Priviledges maintained by his Majesties protection and Justice They were no part of the Bills or Acts of Parliament sent to the King at Oxford in order to a peace in July 1648. No part of the Demands or Bills or Acts of Parliament proposed by the Parliament in the Treaty at Vxbridge betwixt them and the King 23 Novemb. 1644. And there was so litle of grievance or inconvenience or none at all to be found in Tenures in Capite and by Knight service by reason of any accidents for naturally or originally there can be none at all proved to be in them As notwithstanding the Vote of the House of Commons in Parliament made the 20 th day of September 1645. Which being less then an Embrio and no more then an opinion of the Major part of that House a recens assensio velleity desire or intention only which our Laws take no notice of was left to an after more mature deliberation when an Act of Parliament should be brought in upon it have gone through all its necessary requisites formalities and debates the Parliament it self were so litle resolved or beleiving any Grievance to be in them as the Lords and Commons by their Ordinance of the first day of November 1645. did ordain that the Master and Councel of that Court should proceed in all things belonging to the Jurisdiction of that Court according to Law And the House of Commons shortly after viz. the fourth day of November 1645. being informed that by reason of a Vote passed in that House the 20 th day of September 1645. that the Court of Wards should be taken away diverse Wardships Liveries Primer seisins and Mesne rates which theretofore fell and happened were not compounded for as they ought to be It was declared that all of them which have happened or shall fall or happen before the Court of Wards shall be put down by the Parliament shall be answered to the Common-wealth and the Master and Councel of that Court were required to proceed accordingly so as it extended not to any whose Auncestors being Officers or Souldiers have been slain or died in the service of the Parliament But the 24 th of February 1645. upon occasion of a debate concerning the Wardship of the Son of Sir Christopher Wray who dyed as they said in the service of the Parliament an Ordinance was brought in and made by the Lords and Commons for the taking away of Tenures in Capite and by Knight Service which saith one of their allowed Mercuries was first given to the Crown for defence of the Kingdom but the Parliament would take care for other supplies But that Ordinance notwithstanding was so little liked of as that without the giving satisfaction which they promised to the Nobility Gentry and Mesne Lords for the losse of their Tenures by Knight service and satisfaction to the most part of the Officers of the Court of Wards it was no more or not much thought of but lay from that time in a slumber untill the first of August 1647. when the mighty Mechanicques of the Army driven on by their ignorant and seditious Agitators who were but the Engines of Cromwell's lurking and horrid designs had by their Remonstrances like Wolves cloathed in Sheep-skins bleated and seemed to thirst only after godly and purified Reformations and Hewson the Cobler and Pride the Drâ—yman and others of the Colledge of their nâ—w â—apientia busying themselves in State as well as Parliament affairs and thombing the Scriptures and the English Translations of Livy and Plutarch at the wrong end thought every one of themselves to be no less than a Solon and Lycurgus admired Agrarian Laws and other old exploded grievances dreamed they were excellent Politiques and not knowing our good old Laws but suspecting them as well they might to be averse and no well-wishers to their ungodly and worse than Machiavillian devices did all they could to destroy them root and branch and at the same time when in their New-England Phrase they held forth a more than ordinary Care of the Kings Honour and Dignity and the freedom rights and interests of the seduced people proposed or commanded rather that the Ordinance for taking away the Court of Wards and Liveryes be confirmed by Act of Parliament provided his Majesties Revenues be not damnified therein nor those that held Offices in the same left without Reparation some other way Which howsoever it were to the remaining and small part of that Parliament who durst not say it but found themselves under a force which against many of their willâ— had undertaken to be their Guard and safekeeping a motive or spur enough to make them put that Vote and ordinance against the Court of Wards and Liveries inâ—o an Act as they would call it of Parliament after 10000 l. given paid to the Master of the Court of Wards for the loss of his place 5000 l. to Sr. Roland Wandesford Atturney General of that Court 6000 l. to Sr. Benjamin Rudiard Surveyer General 3500 l. to Charles Fleetwood late Governour of the destroying Committee of Safety for his supposed loss by the Receiver Generals place of that Court which he pretended he ought to enjoy by a Sequestration from Sr. Will. Fleetwood his Brother who was then attending his Master the King at Oxford and to Mr. Bacon 3000 l. for a pretended loss of his Office for the making and ingrossing of Licences or pardons for alienation all of them but Sir Roland Wandesford being Members of Parliament it did without any mention made or remedy provided for those only supposed Evils in Tenures in Capite and Chivalry in the Billsor intended Acts of Parliament which were sent to the King the 3 of March 1647. when he was at Holmby under a restraint fall asleep for many years after and left all other to expect their satisfaction upon the Parliaments promises and further proceedings And there was so little cause for putting that Sentence in execution against them in the judgment opinion of some of the most knowing sort of the Arraigners of antiquity and the actions of their more understanding fore-fathers as Mr. Nathaniel Bacon in his Historical discourses of the uniformity of the Government of England under the Britain Saxon Danish Norman and other Kings of this Isle until the reign of King E. 3. published in Anno 1647. and in his 2 part from King E. 2. until the end of the reign of Queen Elizabeth printed in Anno 1651. in a