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
Lands as much sometimes as amounted to a third part of a Shire or County were in the Nobilities or great mens possessions some of whom held of the King a 100 or more Mannors and had as many Knights Fees holden of them besides some Castles Forrests Parks and Chases or that the two Escheators which were many times all that were in England the one on this side the other beyond Trent did not nor could not so carefully look to the death of the Kings Tenants which the Statute of 14 E. 3. ca. 8. complaineth of or that the smaller sort of Lands in Capite or mean mens estates were not so much looked after And yet the old Records of the Kingdome do speak a great deal of care and looking after every part of the Kings Revenew the not mentioning in deeds or conveyances of whom or how the Land was holden the more frequent use of Feoffements with Livery seisin in former times which being not Inrolled hindred or obstructed the vigilance of the Escheators and Feodaries their sleepinesse in permitting where any one Mannor or parcel was holden in Capite many other Mannors or Lands of the same Tenure to be found in the same Inquisition by an Ignoramus of the Tenure services the craft industry of many if not most men to evade and elude as much as they can the Law or any Acts of Parliament though when they are sometimes catched they dearly pay for it Or by some other cause or reason not yet appearing many of the said Knights Fees are lost and never to be discovered the Offices post mortem now extant in the Tower of London being in the last year of the reign of King H. 3. in the beginning of whose reign they first began to be regularly found and recorded but 187. in an 35. E. 1 153. in an 20 E. 2 52. of the succeeding Kings untill the end of E. 4. when such Tenures were most valued and respected are in every year but few in number sometimes less than 200 and many times not above 300 in the most plentiful years of those times And of the Knights Fees Lands holden in Capite and by Knight service which are now to be discovered in the greatest diligence of Escheators their better looking unto them in this last Century of years where there hath been an Escheator for the most part in every County to look to the Tenures and Wardships there will not upon exact search thereof appear to be in an 21 Jac. Regis any more than 71.22 Jac. 73 in 2 Car. Regis primi 112 in 3 Car. Regis primi 85. Custodies wardships granted under the great Seal of England which in Wardships of any Bulk or concernment doe most commonly pass that way leaving those of ordinary and lesser value to passe only under the Seal of the Court of Wards and Liveryes in an 10 Car. primi not above 450 offices post mortem some of which did only entitle the King to a Livery are to be found filed returned in an 11 Car. Regis not above 580 which may give us some estimate of the small number which now remains of that huge number which former ages writers talked of that after that rate if there be 10000 Knights Fees holden in Capite there is scarce a twentieth part falls one year with another to make any profit or advantage to the King by Wardships Marriage Reliefs primer seisin c. Nor are there unless by some unluckiness or accidents commonly above one in every three or four discents in a Family holding in Capite which do die and leave their Heirs in minority then also it is either more of less chargeable to the Family as the Males shall be nearer unto or more remote from their full age of 21 or the Females to their age of 16 some of the supposed Inconveniences being prevented by an earlier marriage of the Inheritrixes or the Kings giving the honour of Knighthood to some of the Males in their minoritie which dispenseth with the value of their marriages And yet those Tenures Wardships and incidents thereunto though so antient legal and innocent in their use and institution were not without the watchful eye and â—are of Parliaments to prevent or pluck up any Grievances which like weeds in the best of Gardens or per accidens might annoy or blemish those fair flowers of the Crown Imperial as that of 9 H. 3 that the Tenant by Knight Service being at his full age when his Ancestor dyeth shall have his inheritance by the old relief according to the old custom of the Fees the Statute of Merton in anno 9 H. 3 ca 2. and 3 E. 1 ca 2â— the Kings Tenant being at full age shall pay according to the old custom that is to say five pounds for a Knights Fee or lesse according to proportion ca 4 and 5. The Keeper of the Lands of the Heir within age shall not take of the Lands of the Heir but reasonable issues customs and services without distruction and wast of his men and goods shall keep up the Houses Parks Warrens Ponds Mills and other things pertaining to the Lands with the issues of the Lands and deliver the Lands to the Heir when he comeâ—h of full age stored with Plowes and all other things at least as he recieved them ca 7. A Widdow shall have her Marriage inheritance and tarry in the chief house of her Husband forty days after her Husbands death with reasonable Estovers within which time her Dower shall be assigned if it were not assigned before The Wards shall not be married to Villains or other as Burgesses where they be disparaged or within the age of fourteen years or such age as they cannot consent to mariage and if they do and their Friends complain thereof the Lord shall loose the Wardship and all the profits that thereof shall be taken and they shall be converted to the use of the Heirs being within age after the disposition and provision of their Friends for the shame done unto them a Writ of Mortd'auncester shall be allowed to the Heir with dammages against the Lord that keepeth his Lands after he is of full age Heirs within age shall not loose their Inheritance by the neglect or wilfulnesse of their Guardians 52 H. 3. cap 7 and 16. The Lord shall not after the age of fourteen years keep a Female unmarried more than two years after and if he do not by that time marry her she shall have an Action to recover her Inheritance without giving any thing for her Wardship or Inheritance 3 E. 1 ca. 22. A Writ of Novel disseisin shall be awarded against any Escheator that by colour of his Office shall disseise any of his freehold with double dammages and to be grievously amerced Westmr. 1.3 E. 1 cap. 24 In aid to make the Son of the Lord a Knight or to marry the Daughter there shall be taken but twenty
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—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
design to make all or most of the Actions of those our Kings and Princes and the Nobility and Clergy in their several reigns for at all of them like one of the Ephori sitting in Censure rather than Judgement upon the Spartan Kings and Government and the Acts of Parliament made in the several Reigns of those Kings he aimed and flung his Fancies clad in a sober Stile and Gravity rather than any Truth or Reason by pretending that they were made and contrived only under their influence to be arbitrary and oppressive to the freeborn people of this Nation for which he got several Preferments under Oliver the Protector of our burdens miseries Though if the Records and Journals of our Parliaments may be credited as certainly they ought to be before him most if not all of our Acts of Parliament were granted and assented unto by our Kings upon the Petitions of the Commons representing the people in Parliament as â—alsoms and great Remedies and redresses of all that they could complain of deliverances from the oppressions frauds and deceipts of one another and prevention of evils which might happen to them and their posterities wherein our Kings have almost in every Parliament given away many diminished very much of their own just legal Rights and prerogatives by granting and confirming their Liberties and Estates with such an infranchisement and freedom as no Nation or people under Heaven now enjoyes And when as heretofore in former Parliaments they gave to their Kings Princes many times too unwillingly any aydes or Subsidies were sure besides the blessings which accrewed to them by many good Laws and wholesome Acts of Parliament to gain a great deal more by their Acts of grace and general pardons only then the aids and Subsidies did amount unto Unlesse it were in the Reign of King H. 8. when the Abby Lands were granted unto him in the raign of King E 6. when the Chanterie remaining peices of those religious Lands were given to him wherein only the Founders and the religious to whom they properly belonged were the only loosers and yet by reason of King H. 8. his Endowments and erection of the Bishoppricks of Oxford Peterborough Chester Gloucester and Bristol the Colledge of Christ-Church in Oxford and the Deanary of Westminster Deanries and Prebends of Canterbury Winchester Worcester Chester Peterburgh Oxford Ely Gloucester Bristol Carlile Durham Rochester and Norwich and his large gifts and grants to divers of the Nobility who had formerly been the Founders or great Benefactors to many of the Abbyes and Prioryes and also to other of his people and the grants of E. 6. Queen Eliz. and King James considered very little of those Lands and Revenues doe at this time continue in the Crown And our many Acts of Parliament against Mortmaines without the Kings Licence Provisions by the Pope or any appeales to be made to him under the most severe penalties of Premunire the Act of Parliament taking away the Popes Supremacy the fineing and putting the Clergy of the Provinces of Canterbury and York under Premunires by King H. 8. An Oath of Renunciation of all fealty and appeales to the Pope an Engagement to observe all Lawes made against his Power the losse of 72 Mannors or Lordships out of the Revenues of the Arch-bishopprick of York and of sundry great Mannors and Possessions taken from the Sees of Canterbury Ely and London The demolishing and dissolution of Religious Houses 3845. Parochial Churches being more than a third part of all the Churches in England impropriated and gotten into the hands of the Laity many of the Vicarages confined to the small and pittiful maintenance of some 20 l. per Annum others 10 and some but 6 l. per An. several Acts of Parliament made in the reigns of several other Kings and Princes clipping the Clergies Power in making Leases or chargeing their Benefices with Cure restraining their taking of Farms forbidding Pluralityes intermedling as Commissioners in Lay or Temporal Affairs or to make Constitutions in their Synods or Convocations without the Kings Assent may declare how little power for some hundreds of years past the Clergy of England have before or since the Reformation either encroached upon or been able to get or keep Finds not in his mistaken Censures and Distortions of most of the Acts of our Kings and Parliaments to make way in the deluded peoples minds for the erecting of Olivers Protean and Tyranical Government Any fault with the erection of the Court of Wards and Liveries nor with Tenures or Wardships but justifying them sayes that the relief paid by the Tenant upon the death of his Ancestor was in memorial of the first Lords favour in giving him the Land and was first setled in the Saxons times that the Law of Wardship may seem more antiently seated in this Kingdom than the Normans times that Wardship was a fruit of the Service of the Tenant and for the defence of the Kingdom Which that Parliament or the following Conventions or Assemblies made no hast to overturn or take away until Oliver Cromwel that Hyaena or Wolf of the Evening having filled the Kingdom with Garrisons several Regiments of Horse and Foot amounting to 30000. men which were to be constantly maintained at the peoples charge to keep them quiet in their slavery had upon the humble petition and advice of that which he called his Parliament acknowledging with all thankfulness the wonderful mercies of God in delivering them from that Tyranny and Bondage both in their Spiritual and Civil Governments which the late King and his party which in a Fog or Mist of sin and delusion they were pleased most injuriously to averre and charge upon them designed by a bloody War to bring them under when as then they were under none and all but the gainers by the spoyles of those Wars have since had more Burdens Grievances and Taxes entailed upon them then ever was in any Nation in Christendome allowed him in a constant Revenue for support of the Government and the safety and defence of the Nations of England Scotland and Ireland a yearly Revenue of thirteen hundred thousand pounds whereof ten hundred thousand pounds for the Navy and Army which far exceeded thaâ— which accrewed to the Crown or Kings of England by Wardships Tenures and Ship-mony which were but casual and upon necessity and but at some times or seldome and alwayes less by more than eight parts in ten of those justly to be complained of awful and yearly Asessements Procured the Assembly or Parliament so called in Anno 1657. to awake that sleeping Ordinance and dresse it into an Act as he called it of Parliament wherein It was without any Cause or Grievance expresâ— or satisfaction given or promised to those that remained the loosers by it enacted that the Court of Wards and Liveries and all Wardships Primer seisins and Oustre le maines and all other charges incident and arising for
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
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
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-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
how to judge of and the little Parliament so called in the beginning of the year 1640. upon the invasion of an Army of â—actiâ—us Scots and a letter produced by the King that they had written for aid to the French Kâ—ng did not rightly apprehend for it is not to be doubted but that the cheerful and ready aids upon all occasions given to the Kings of England by the Tenants in Capitâ— and Knight Service and the Nobility and Gentry and their Tenants Friendâ— and Followers taking Arms and foâ—lowing the Royal Standard was a great cause â—f their Conquests in France and Warlike atchivement in that and other parts of the World often beating back the incursions of the Scotch and Welch and deâ—ending the borders The taking away of thâ— Knights Fees or Tenures by Knight Service from the Nobility and Gentry without any Recompence if they would be content to part with them or to accept it Will be an Act of great Injustice Regula quippe feudalis et firma est quod Dominus nec in totum nec pro parte minuere adimereve Jus vassallo quesitum possit sine culpa eoque non convicto for it is a fixed and constant Rule in the Feudal Law That the Lord cannot neither in the whole nor in part without a forfeiture or conviction of his Tenant diminish or take away the Vassals Right and it would be against Right Reason and Equity not to give a Recompence in Caâ—se of pulling down or fireing a House in a Necessity of War to prevent an Enemy but much more against it and our Magna Charta in Case of no Necessity to Sacrifice without a just Recompence given for it the Estates and Rights of some to pacifie the Fears of others and disturb and incumber the Estates of all or a great many to free the Estates of a few which would be aâ— unjust as for the Lords of Mannors to make By-laws forbidding the Services of their Tenants and without any forfeitures or convictions grant or sell away their Lands or Copy-hold Inheritances to Strangers or dedicate the Profits thereof to the publick wherein the owners or Proprietors shall get none or very little share in it or such as will be impreceptible and appeared to be so much against Law and Reason as when in the dissolution of the Abbyes and Monasteryes the Nobility and great men who had been Founders of many of them or given a great part of the Lands thereof were to be the losers of that which should have reverted or come unto them if they could not consist with the first Intentions King H. 8. did take a care to gratifie many of them with great quantityes and Portions thereof and to some granted intire Priories and Nunneries of their Ancestors founding as to John Earl of Oxford the Priory of Colne and Nunery of Hedingham in Essex and the like to many others which might be here remembred The Publique Faith which was wont to have so much care taken of it when she borrowed money to make our unhappy warres and Contentions of so much of the Nation as hold by the Tenures in Capite and Knight Service and of all the other parts of the people who by Oaths of Supremacy Protestations and Covenant were not to prejudice the King nor by their Covenant any other in their Rights and Liberties will now be broken which when Livy a Heathen Writer and one that very well understood affairs of State upon the making of a Law at Rome to pacify a mutiny that the Prisoners for Debt should not be bound or fettered as the manner then was could say that Ingens vinculum fidei a great Obligation or Bond of Faith amongst men was that day broken he would have without doubt said more were he now aâ—ive as to our breach of Faith amongst men but a great deal more if he had been Christian as to God Almighty Take away not only the Honor but the publick Benefits of those Tenures and feudal Rights which are so highly and justly esteemed in all other Kingdoms and Principalityes which are so happy as to live under Monarchy the best of Governments as they can give them no other Character then that Jura Regnorum Ducatuum Marchionatuum adeoque totius Imperij Leges Fundamentalâ—s ac nervi quibus Monarchiae Romanae cum ipso senescente mundo languescentis lutei pedes colligantur inâ—iis continentur Therein are contained the Laws and Rights of Kingdoms Dukedoms Maâ—quisates the Fundamental Laws of the Empire and the Nerves and Sinews by which the Empire languishing in the old age of the world hath been sustained And that Feuda Feudorumque Jura â—â—delitatem â—idem publicaâ—â— pacem incolumnatem Communis Patriae firmant â—irmissimum Militiae contra Communes Reipublicae hostes neâ—vum ac praesidium suâ—ministrat adeoque fulcâ—a Germanico Romani Imperi◠〈◊〉 desiderant Feuds and the Rights thâ—â—â—of do six and consolidate the Fidelity publique Faith Peace and wellfare of the Common-wealth and administreth the greatest help and strength in war against the Common Enemy and is worthy to be called the Prop of the German and Roman Empire Make our Nobility and Gentry who have by their Chivalry and high Attempts by Sea and Land rendred them second to none and published the Fame and Glory of their Actions as far and farther than ever the Roman Eagles flew to be like the Roturiers or Paysants oâ— France and a reproach or hissing to all Natioas or like Davids Embassadors when the Children of Ammon had misused them and shaved the one half of their Beards and cut off their Garments in the middle even to their Buttocks and to be put behind all but the Dutch and Switzers the former of which do Trade under Taxes Excise the latter are but the Mercenaries and Hirelings of the French and Spanish Kings in their Wars and Hostilities and ranâ—king us with them and those little and despicable Commonwealths of Luca and Geneva cast us into the Giddy and at last woeful Presidents and Consequences of the unquiet headed Argentinians Lindorians Citizens of Siena Genoa and Florence who by ruining and rooting up the Nobility and Gentry and making three rancks and degrees of their Citizens some great some mean and the rest of the vulgar the two last putting out the first cast themselves into a Circle of blood and misery out of which nothing but their former Government was able to refcue them Occasion the losse and ruine of purchasers and Mony-lenders enlarge their complaints of double treble Feoffments Mortgages which by the disuse of the Court of Wards and finding of Offices after the death of Tenants in Capite and by Knight Service have been more than formerly and wherein some of our late Reformers were known more to have exercised their wits than their Consciences conceal'd Dormant and fraudulent Assurances carried in the Pockets of some to pick the Pockets of others which by reason of the
Tenures in Capite and finding of Offices wherein the Evidences being produduced and many Times found did not only find but declare what Estate the deceased was seised of and if the truth did not then appear which could hardly be hid when as the Jury were commanded by the Writ of Diem clausit extremum to inquirâ— upon their Oaths of what Estate the last Ancestor dyed seised of and that the vigilancy and cares of the Feodaries and Escheators who were also to be present to attend them would cause them to be the more careful and if the fraud of the Heir should be able to make its way or escape thorough them the Estate found in the Office would after prove to be an Evidence against them and either overthrow or perplex the Knavery of such wicked designs The Recompence of 100000 l. per Annum if it could be raised without Injustice or the breach of the Laws of God Nature and Nations and our oftentimes confirmed Magna Charta and the inforcing of 19 men in every 20 to bear burdens which nothing at all appertains to them will not be adaequate to the losse of a great part of the Kings Revenue which did serve for the maintenance of his Crown and Dignity and to exempt and ease the Subjects of extraordinary Taxes and Assessements which the Necessity of Princes for the good and Defence of the Kingdom must otherwise bring upon them Nor to the want of Tenures in Capite and by Knight Service the Services Incidents belonging unto them being a certain and never failing Defence of himself and the Kingdom Castle-guard Licence of Alienations giving him notice and continuing him safe in the Change of his Tenants being so necessary to Government as some have been grievously fined for alienating their Lands in Capite without it Mariage Dependancy of the Heirs which hold of him Livery and Reliefs Grand Serjeantyes and a great part of the Honour and Priviledges which all other neighbour Kings ond Princes are neither desired to part with nor can he perswaded so much to lessen themselves and their Regalities For gold and Silver and precious Stones or any thing lesse than the whole Kingdom of England it self is not of value or to be compared to the Honour of a King and the homage and duty of his Subjects the Gratitude Faith and Promises of their Ancestors which should descend to them with the Lands holden by those Tenures whenas Omnes habent Causam a primo et ex tunâ— non ut ex nunc are bounden to the Cause which obliged their first Ancestor and Progenitor and are to consider that it is now as it was then a most ready means and help which did and doth naturally and kindly arise for the Defence of themselves and the Kingdom for as it is not the weight of an inestimable Dyamond or Ruby that makes either of them to be better than a Flint or any other Stone but the lustre vertue and scarcenesse of them and that a greater poise or weight of a man makes not a Solomon an Alexander Sir-named the great or an Aristotle but that all men and things are to be esteemed according to the vertues and Excellencyes which are in them so it will not be the yearly Profit in money which was made of the Wardships primer Seisins Liveryes and Incidents which belong to those Tenures but the Homage Dutie gratitude and necessary Attendance in War not only of those that held immediatly of the King but those that were the mediate Tenants and came also with the immediate the grand and mutual Tye betwixt the King and his people and the Regality Prerogative intrinsical and true worth and value of them when there should be any use of those necessary Defences of the King and his Kingdom in making a diversive War or succouring his Friends and Allies which are not seldom or were in more heroick times justly accounted to be as Outworks Ante Murales or Bulwarks of the Kingdom that the Rate which is now offered for those Tenures are but like a Tender or Offer to give the weight in Gold for an incomparable not to be got again and unvaluable Meddal or for Aarons Brest-Plate Moses rod or the Scepters of Princes if they could have been purchased at all and by weight It will be as unsafe as unusual to take money or Turn into a Rent that which in its first Institution and a happy long and right use which was made of it was only intended for a defence of the Kingdom when the King is not likely to be any â—aver by it and shall not gain 90000 l. per Annum his own Income by Licences of Alienation deducted for the clear Profit of the Court of Wards which the Lord Cottington when he was Master of that Court did but a year before the Troubles make as much by it besides the many great and royal Prerogatives which he shall lose to gain more mischiefs and Inconveniencyes to himself his People then at the present can be instanced or numbred The giving the King a Recompence by an yearly Rate amounting to one hundred thousand pounds per Annum to be charged upon all mens Lands Tenements and Hereditaments holden in Capite or Socage by Copy-hold Leases for Lives or Tenants at Will or for yeares will be against right Reason Justice and Equity as well as unwarranted by any hitherto Law or Custom of England to make 19 parts of 20 for so much if not more will probably be the odds that were not liable to Wardships or any imagined Inconveniences which might happen thereby not only to bear their proportionable part of the general Assessements for War but a share also in the burden of others where it could never be laid upon them and wherein they or the major part of them by more than two in three have no Lands in Fee simple Fee taile or by Leases for 100 years or any longer Term nor are never like to be purchasers of any Lands at all and if they had mony to do it are not likely to buy Inheritances if inheritances not Capite or Knight Service Lands when there is by more than 9 parts in 10 of Socage or Copy-hold Lands to be purchased were not nor are like to be in any danger of Wardships or under any fear or Apprehensions of it and render the Capite Land three or four years purchase dearer than it was wont to be and the Socage Lands three or four years purchase the cheaper only to free the Nobility Gentry and men of greatest Riches and Estates in the Kingdom which are subject to those small Burdens which are only said to be in Tenures in Capite and by Knight Service Or if laid upon the Moyety of the Excise upon Ale Beer Syder and Coffee c. or any other native or Inland Commodity will fall upon those that have no Land as well as those which have as upon Citizens Mechanicks Children
themselves or their Emperour with it make thereby themselves their posterity Slaves to the enemy of Christendome then put it to the right use of defending their Prince themselves and Posterities And will all resolve in this a defence of the King his people will be eternally necessary an ordinary a speedy a ready a willing and the most ingageing obliging way will be better then that which shall be extra-ordinary a far off and to seek or be enforced And the most ready means for a defence and at hand must needs be the most proper and beneficial for upon that ground Kings have their Treasuries Armories and Arsenals which Republicques are content to imitate Our Constables and Justices of Peace in England being as standing Officers and Guardians of the Peace are more for the safety of the people when they are made before hand to be ready upon any breach of peace then if they were to seek or to be made afterwards and iâ— would be no dimunition of the strength or defence of the Kingdome to have the Nobility and Gentry of England by the Tenure of their Lands as it were listed and undertaking upon all occasions to serve their Prince and defend their Country for the smallest understandings can find the way to determine that it will be better and more easie for the Subject to have the King and their Country served by a Knight service in acknowledgment of great Estates only given them for that purpose than to have 10 or 12000 men provided by the Subjects by a constant Pole money and Assessement upon them and their Heirs for a ready Guard and Assistance for the defence and safeguard of the Country as well as of the King which the Danes after their late so great misfortunes and miseries by the incursions furious attempts of the Swedes have learnt to be wisdome have therefore lately bound themselves and their posterities to maintain a guard of 10 or 12000 men to be paid by a Pole or Assessement And unless the divine light of reason and that which hitherto hath been called wisdome have altered their courses and resolved that which is retrograde and quite contrary to be the better the most safe and natural way will be as it ever hath been to have our men at Arms to be Natives rather than Forreigners such as are of the better sort and bred and educated in Feats of armes rather then such as have neither skill nor courage and such as have Lands and Estates of their own to make a concernment rather than such as have none Better to have the Nobility and Gentry who are bred and trained up in War and understand the necessity and causes of a War to be ingaged in the defence of the Kingdom than the vulgus who are often called and too often experimented and best know how they came to deserve it mobile imperitum vulgus a Beast of many heads and without a Superiour or Governours are â—it only to attempt again the building of Babel wherein if they were all of one language they would for want of agreement or wit either totally miscarry in the building or make it to be an unimitablepeice of deformity For it was certainly no fault in Abraham that he had 318 Servants born in his own house to Arm in a case of necessity to rescue his Brother Lot Nor in David that he had Servants to passe before him to War Or when he well understood that the Children of Israel when they had no King and every one followed his own Imaginations were often delivered into the hands of the Midianites Philistims many of the Nations round about them and that Deborah Baruch having undertaken to releive them were enforced to pronounce a Curse against thosâ— that came not to help the Lord against the mighty when Reuben had great devisions did abide amongst the Sheep-folds Dan remained in Ships and Ashur continued by the Sea-Shore And that he had tasted of the fickleness infidelity of the men of Judah Israel in the Rebellion of Absalom did though they were afterwards so kind unto him as to wrangle with the men of Judah for bringing him home to his Kingdom and not giving them a share in the honor of it not think it to be repugnant to the good and safety of the people to settle a strong well formed Militia and to have a Life-guard of 24000 valiant men to attend by months and courses the safety of his person and his peaceable Government which must needs be better than to be left to the humor of the people to go or not to goe with their Prince to war as the wind of their Interest or faction shall blow them which may make such kind of aids in the greatest of necessities to be hardly compassed And the Delectus of the Roman Souldiers in their growing greatnesse and most virtuous condition of that State or Commonwealth before their course and custom of Patronage Clyentelage had taken root and gained approbation and their often Mutinies and refuseing nomina dare to list or Inroll themselves unless usury might be lessoned and Lawes cut out to their Fancies hath told us how like Egiptian Reeds such a away of raising men to defend the King themselves and the Kingdome will be to those that shall most trust or leane upon it So that then the Gorgons head and the Bugg-beare of the Tenures in Capite and Knight Service being only the marriages and puting the Wards Estates under a rent whilst they shall be in minority if rationally considered with allowance of the seldome happening of it or but once in three or four descents and two yeares value being allowed upon the death of every Tenant in Socage or Coppy-hold Estates at the admission of every one of their Heirs will with their reliefs and herriots possibly make the accompt of the mony and charge of the wardship to be something equal if not a great deal lesse Which howsoever may be removed or made to be more familiar and better understood or born if the Tenants in Capite and by Knight Service shall be exempted from all other Taxes or Assessements for War but what belongs to their Service as by Law they antiently were and ought to be the Wards nor their Estate during that time being never heretofore charged with any such Assessements as our late Tax-Masters have laid upon the People when as the fifth and many times the third part of the Wards yearly Rents besides a fifth part of the value of their real estate and a twentieth of the personal and revenew enforced taken from them to maintain Iniquity would have saved more mony than the Wardships cost Or if that will not still the causelesse out-cry that the Licence of Alienation which as well as in Capite by Knight Service are by the Custom of many Manors to be paid in Socage and the Homages Grand and Petit Serjeanties Reliefs Primer
them into Tenures in Socage That by the Civil Law that universal and great Rule of Reason Imperatoriam Majestatem non solum armis decoratam sed etiam legibus oportet esse Armatam ut utrumque Tempus et Bellâ—rum et pacis recte possit gubernari The Imperial Majesty or Power ought not only to be adorned strengthened with Armes the power thereof but with Lawes to the end that as well in time of War as Peace he may rightly govern And that therefore we may well tremble and shake at the name of Innovations and desiring to find the way again into the old Paths of Peace Plenty and Security Have cause enough to say as the learned Grotius did concerning Holland only changing the word Respublica into a better of a Kingdom that multum debemâ—s majoribus nostris qui acceptam a primis conditoribus Rempublicam per se egregiam nostro vero ingenio nostrisque studiis aptissimam pace servatam bello recuperatam nobis reliquere we owe much to our Ancestors who having received the Common-wealth which is excellent in it self and fited to our Customes and manners from those which first founded it and left us to enjoy in peace what they had recovered in War nostrum est si nec ingrati nec imprudentes esse volumus Rempublicam constanter tueri quam ratio suadet probant experimenta commendat Antiquitas And if we would not be ingratefull or unjust wee ought to defend that Kingdome and Government which Reason perswadeth us unto Experiments approve Antiquity commendeth Collapsa ruent subductis tecta columnis FINIS Hollands Case in Cokeâ— 4 Reports Fortescue de laudibus Legum Anglâ—ae (a) Genes 21.23 (b) Hooker Ecclesiastic Polit. lib. 1. (c) Gellius lib. 1. cap. 13. (d) Budâ—us in Annotat. ad Pandect (e) Oldendorpius (f) Oldendorpius (g) Craig de Feudis (h) Cujacius de seudis lib. 1. (i) Gerardus Niger in Cujacio lib. de feudis (i) Craig de origine fâ—udorâ—m dâ—eg 4. (k) Câ—ke 1. parte Instâ—t so 1. b. (l) Spelmans gloss p. â—58 (m) Selden tit Hon. p. 692 693. (n) Spelman gloss (o) LL. Ed. Confessor cap. 35. (p) Lambert fo â—35 (q) Spelman gloss in verbo fidelitatis (r) Bodin cap. 7. (s) Besoldus discurs Polit. p. 74 Spelman gloss p. 254 256. Alber. Gentilis p. 696. (t) Mat. Paris 100. (u) Bartoâ—uâ— de testibus (w) Sr. John Ferâ—e glory of generosity 78. (x) Selden tit â—on 783.784 roâ— Magâ— H. 2. 39 E. 3 Bracton Chap. de appell de mayhems (y) Selden tit hon ca. 5.784 (z) M. S. Mr. Rob. Hill concerning Tenures (a) 52 H. 3. Stat. Marlâ—bridge (b) 18 E. 1. Quia emptores c. (c) Somner de Gavelkind 60. (d) Rot. Parl. 6 H. 4. (e) Fortescue de laudibus legum Angliae ca. 44. Cornel Neosâ—ad de Feudi juris scripti Hollandici West Frisicique successione ca. 2.4 et 5. (h) Rot. Parl. 1 R. 2 n. 16. (i) Rot. Parl. 9 H. 4. n. 46. (h) Hugo Gotius de antiquitate Reipublicae Batavicae edit an 1630. 53. L. noâ— dubito ss de Captivis (l) Sigonius de â—ntiquo jure Civiâ—â—n Rom. 54.97 et de Repub. Athen. 47.4 Plutarch in vita Solonis (m) Perionius de Rom. et Gâ—aeâ— Magistrat (n) â—â—kam â—ap quae per solam consuetudinem c. Coke 1 part inâ—â—it cap. 5. 〈◊〉 117. (o) Capiâ—â—a itinâ—ris in vet magn Charta 157 158. Coke 4. part institutes tit Câ—r Ward (p) Glanvil lib 12 cap. 9 10 Register 4 59 Coke magna Charta cap. 10. (q) instructions King Jâ—mes in Anno 1622. (q) Daniel 168. (r) Lib. Caenobij dâ— Ramsey Sect. 114. et Spelmans glossar in verâ—â— Fiscus (s) Claus. 3â— H. 3. (t) Plaâ—it 〈◊〉 3 E. 3. Rot. 58. (u) 46 E. 3 par Parl. 2 in 20 34. (w) 23 H. â— Escaet (x) Mat. Paris 849. (y) Mat. Paris 100â— (z) Parl. 4 Car. primi (a) Daniels History (b) in lib. nigro Scaccarij Spelmans glâ—ssar in verbo firma (c) Master of the Wards Oath (d) 32 H. 46. (e) Attorney of the Wards Oath (f) Auditors Oath (g) Escheators Oath (h) Math Paris 101. (i) Spelmans glossar 416. et Daniel 189. (k) Chronic Leichfeldense (l) Continuation Floren. Wigorâ— et Sr. Roger Twisden in prâ—fat ad leges Willielmi 1. (m) M. S. Cottoniana (n) York vincent Catalogue of English Nobility (o) M. S. inter L. L. Regis Edwardi (p) Mat Paâ—is 99. 100. (q) Mat. Paris 100. (r) Mat. Paris (r) Mat. Paris 977. (s) Pat. 30. E. 1. (t) Walsingham ypodigmâ— Nâ—uster 487. (u) Claus. 30. E. 1â— (w) parl E. 1 (x) Daniels Histoâ—y 195. (y) 25 E. 3.1 (z) Rot Parl. 5 R. 2.11 14. (a) Rot Parl. 13. R. 2 n. 45. (b) Declarat Lords and Commons in Collect. Parliament declarations 386 390. (c) 1 H. 8. cap. 12. Coke 4. part Institutes 197. (d) 1 Jacobi 5. (e) Sr. Francis Bacons speech in Parliament in 7. Jacobi touching a Composition to be made for Tenures in Capite (f) 1 Caâ— primiâ— (g) Coke 4. part Institutes tit Court of Wards 193 (h) Coke 4. Institutes lib. ruâ— Scac. (i) Exact Collections of the King and Parlament Declaratioâ—s 8. (k) Exact Collectâ—ons of the King and Parliament Declarations 8. (l) Exact Collection of the Kâ—nâ—s and Paâ—â—â—amâ—nts Dâ—â—lâ—rations 307. (m) Exact Collection of the Kings and Parliaments Declarations and Messages 308. (n) Exact Collect. of the Kâ—ngs and Parliament Declarations 850.856.857 (*) Propositions sent by the Parliament to the King at Oxford 1 of Febâ—uary 1642. (*) Proposals agreed upon by the Council of the Army to be tendred to the Commissioners of the Parliament residing with the Army 1 August 1647. (p) Nat. Bacons historical Discourses of the Kings of England 202.254.296 in 2 part 241. (q) Naâ— Bacons historical discourses of the Kings of England 219. (r) Petition of advice of the Commons of England assembled in Parliament in An â—657 1 Chronic. 12.23 29 30 33. 1 Chonic 27.1 Deut. 17.12 (s) 2 Chroniâ— 8.7.8 (t) 2 Chron 17.2.3 10. 2 Palip 17.2.10 11 12 13 14 15 16 17 18 19 Lib. 1.81 (w) 1 Sam. 14.52 x 1 Chronic. 26.31 32. (y) Nehemiah 4.15 16 19 20 11. v. 1.14 (z) 2 Sam. 23.8 (a) 1 Reg. 10.4 5. (b) Esther 1.10.14 (c) Cromptons Iurisdiction of Couts (d) Lib. rub in Scac. et Camden Brit 523. (w) Camden Brit. 353. (x) Lambard perambulation of Kent 362 (y) Camden Brit. 505. (r) Camden Brit. 463. in 4â—â— (s) Camden Brit. 505. (t) Ro. â—in 11 E. 2. Cokeâ— 1 part Instit. 70. (u) Camden Brit. 530. (y) Camden Brit. 361. (a) Camden Brit. 604. (b) Lambards Perambulation of Kent (c) Barn Brisson in Basilic lib. 6. tit 13. (d) 21 E. 3. â—3 45 E. 3. â—â— (e) Iudges 5.23 (f) 2 Sam 11 11. (g) 2 Sam. 19.31 32 33.35 36. (h) Charta H. 1. et Regis Iohannis
ejus in artibus sint experti quod domus regia sit tanquam gymnasium supremum nobilitatis regni schola quoque Strenuitatis probitatis morum quibus regnum honoretur floret ac contra Irruentes securatur hoc revera bonum accidisse non pottuisset regno illi Si nobilium filâ—i Orphani Pupilli per pauperes amicos parentum suorum nutrirentur and greatly approve as he did of our Tenures in Capite and by Knight Service which have heen since better ordered and more deserve that and a better commendation and to put forth your hand to rescue them who have hitherto as great Beams peices of Tymber or Pillars helped to bear up and sustain the Fabrick of our Antient and Monarchical Government and have no other fault but that they are misunderstood and misrepresented to the vulgar who by making causelesse complaints multiplying them have done of late by our Laws and best Constitutions as the Boys are used to do when they hunt Squirrels with Drums shouts and Noyses And that your Lordship who is able to say much more for that Institution and Right use of Tenures will be pleased to accept of my good Intentions and pardon the Imperfections of London 23. November 1660. Your Lordships most Humble Servant Fabian Philipps THE CONTENTS CHAP. I. OF the antiquity and use of Tenures in Capite and by Knight service in England and other Nations page 1. CHAP. II. The holding of Lands in Capite and by Knight service is no Slavery or Bondage to the Tenant or Vassals 12. CHAP. III. Tenures of Lands in Capite and by Knight service are not so many in number as is supposed nor were or are any publique or general Grievance 29. CHAP. IV. How the design of altering Tenures in Capite and by Knight service into Socage Tenures and Dâ—ssolving the Court of Wards and Liveries and the Incidents and Revenue belonging thereunto 〈◊〉 out of the Forges of some private mens imagiâ—â—â—ions to be afterwards agitated in Parliaâ—â—nt 145. CHAP. V. The Benefits or Advantages which are expected â—y the people in putting down of the Court of wards â—nd Liveries and changing the Tenures in Capiâ—e and by Knight service into free and common Sâ—cage 154. CHAP. VI. The great and very many Mischiefs and Inconveniences which will happen to the King and Kingdom by taking away Tenures in Capite and Knight service 157. CHAP. VII That Tenures in Capite and Knight service holden of the King and the Homage and Incidents thereunto appertaining and the right of the Mesne Lords cannot be dissolved or taken away by any Act of Parliament The Conclusion 258. Errata's or Faults escaped in Printing by the hast of the Presse PAge 1 line 1 leave out and p. 2 l 28 for be read by p. 6 l 12 for or Knights r and Knights p. 8 l 16 leave out that ib. r in Capite and Knight service p. 9 l 25 for where r were p. 17 in the margent leave out the quotation note p. 21 l 18 r. his enfant p. 23 l 23 r. be the lesse free p. 24 l 26. for was r. were p. 36. l 12 r them 20 H. 3.6 p. 38 l 3 for E 1 r. E 3. p. ib. l 6. r person 42 E 3.5 p 40. l 31. for of r. or p. 43. l 18. r thought to p. 54 l. 16. leave out and. p. 68 l. 14 leave out was p· 81 l. 12 for aâ— r. in p. 82 l. 15 for E. 3 r E 1. p. 100 l. 7 for 1648 r. 1643. p. 111 l. 2 leave out his p. 125 l. 1 for Episcopium r Episcopum ib. l 18. r hold by ib. l. 23 r nor could 126. l 12 for â—e r. to p. 131 l 32. r For it p. 13â— l. 1 leave out Lawes after the. ib. l. 2 leave out the. ib. l. 15 for and r. for p. 135 l 6. r or by p. 136 l. 14 for and â— which p. 138 in the margent leave out Litletons quotation p. 140 l. 13 leave out an p. 154 l. 10 r. Grand and Petit. p 159. in the margent for XI r II. p. 162. against l 12 in the margent put V. ib. against l 33. put VI. p. 163. l 4. for Protections r Portions ib. in the margent against l 8 put VII ib. against â— 20 put VIII p. 164 l 4. for and r shall ib. in the margent against l 15 put IX p. 165 against l 33. put X. p. 166 against l 5. put XI ib. against l. 10 put XII ib. against l 14 put XIII ib. against l 26. put XIV p. 17 r l. 15 for amore r. more p. 174 in the margent for Olbertus r. Obertus p. 183 in margent for Lovelaces r. Loâ—es p. 184 l. 16. leavo out in p. 185 l. 32. leave out they p. 187 l. 9. for enernate r enervate ib. l 24. for displaced r. displayed p. 192 l. 15. leave out if not recompensed by some Annual payment p. 194 l. 8. r. under the penalties of ibib l 9. leave out under the penalties p. 212 l 22. r be a Baron ibib leave out of Holt. p. 217 l. 2. for derived r. deemed p. 222 in the margent against l. 15 put L. p. 241 in the margent against l 6. put LXIV p. 24â— against l 4 put LXV p. 246. against 26 put LXXII p. 247. l 4. for know r knowing p. 254. l 20 r which is ib. 28 r and theâ— p. 255 l 24 r or that p. 259 l 18. for it r them ib. l 23 leave out upon all p. 268. l 4. leave out and. p. 269 l 15 r or toâ— p. 274. l 33 for of r if p. 275. l 11 leave out would ruine◠〈◊〉 l 13 r Baronies would be ruined CAP. I. Of the Antiquity and use of Tenures in capite and by Knight service in England and other Nations THe Law of Nature that secret and great Director under God and his Holy Spirit of all mens Actions for their safety and self preservation by the Rules or Instinct of Right Reason and the Beams of Divine Light and Irradiations So far as those Laws of Nature are not contrary to positive and Humane Laws which are alwayes either actively or passively to be obeyed having in the beginning of time and its delivery out of the Chaos made and allowed Orders and distinctions of man-kind as they have been found to be more Rich Wise Virtuous Powerful and Able than others therfore the fitter to Protect Defend and do good unto such as wanted those Abilities Endowments and constituted ordained the faith and just performances also of Contracts Promises and Agreements and the acknowledgements of benefits and favours received being no strangers to those early dayes when the Patriarch Abraham had leave given him by Abimelech King of Gerar to dwell in the Land where it pleased him and that Abimelech in the presence of Phicol the chief Captain of his Host who took himself to have some concernment in it required an
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
wast in the Wards Lands or seised Lands which ought not to be seised Et omnes illi qui sentiunt se super hiis gravatos inde conqueri voluerint audiantur fiat eis Justitia All that were grieved were to be heard and have Justice done them and the Tenant had his remedy by a writ of ne injuste vexes where his Lord did Indebita exigere servitia And least any thing should but come within the suspition of a Grievance or that the power of the Court of Wards and Liveries and the latitude which the Act of Parliament of 32 H. 8. had given it which was to be as fixed as the trust which was committed to it should in the intervalls of Parliaments or seldomest Cases be any thing like to a burden or Inconvenience the disposing and granting of wardships was by King James his Commission and instructions under the great Seal of England in an 1622. to the end that the people might stand assured that he desired nothing more than that their Children and their Lands which should fall unto him by reason of wardships might after their decease be committed in their neerest and trustiest friends or to such as they by will or otherwise commit the charge unto upon such valuable considerations as are just and reasonable that the Parents and Ancestors may depart in greater peace in hope of his gracious favour their friends may see their children brought up in piety and learning and may take such care as is fit for the preservation of their inheritance if they will seek the same in time Ordered that no direction for the finding of any Office be given for the wardship of the body and lands of any Ward until the end of one moneth next after the death of the Wards Ancestor but to the neerest and trustiest friends of the ward or other person nominated by the Ancestor in the wards behalf who may in the mean time become Suiters for the same among whom choice may be made of the best and fittest No composition agreement or promise of any wardship or lease of Lands be made until the office be found and then such of the friends to have preferment as tendred their Petitions within the moneth they yeilding a reasonable composition The Master Attorney Surveyor and other the Officers of the Court of Wards were to inform them selves as particularly as they might of the truth of the Wards estate as well of his Inheritance as of his Goods and Chattels the estate of the deceased Ancestors and of all other due circumstances considerable to the end the Compositions might be such as might stand with the Kings resonable profit and the Ability of the Heirs estate No Escheatâ—r shall inforce any man to shew his evidence That all Leases of Wards lands except in cases of concealment be made with litle or no Fine and for the best improved yearly rent that shall be offered consideration being had of the cautions aforesaid that no recusant be admitted to compound or be assignee of any wardship That where it shall appear that neither the King nor his progenitors within the space of threescore years last past enjoyed any benefit by Wardship Livery Primer seizin Releif Respect of Homage Fiâ—es or mesne rates of any lands the Master and Councel of the said Court were authorized to remit and release all benefit and profit that might accrew to the King thereby And in all cases where covenants were pâ—â—formed to deliver bonds which were taken concerning the same And that upon consideration of circumstances which may happen in assessing of Fines for the marriages of the Wards and renting of their lands either by reason of the broken estate of the deceased want of provision for his wife his great charge of Children unprovided for infirmity or tendernesse of the heir incertainty of the title or greatnesse of incumbrance upon the lands they shall have liberty as those or any other the like comsiderations shall offer themselves to use that good discretion and Conscience which shall be sit in mitigating or abating Fines or Rents to the releif of such necessities In pursuance whereof and the course and usage of that Court as well before as after the said Instructions Wardships nor any Custody or Lease of the Wards or their Lands were not granted in any surprising or misinforming way but by the care and deliberation of the Master and Councel of the Court of Wards and Liveries upon a full hearing and examination of all parties and pretenders they to whom they were granted Covenanting by Indenture under their Hands and Seals with Bonds of great penalties to perform the same to educate the ward according to his degree and quality preserve his lands and houses from waste fell no Coppice Woods grant no Copy-hold estates for lives nor appoint any Steward to keep the Courts without licence and to permit the feodary of the County where the land lieth yearly to survey and superintend the care thereof and had reasonable times of payment allowed them And could not likely produce any grievances in the rates or assessing of Fines for marriages or for rents reserved during the minority of the wards or for primer seisin or any other Compositions when as the Kings of England since the Raign of the unhappy R. 2. and the intermission of the Eyres and those strict enquiries which were formerly made of the frauds or concealment of the Escheators or their Deputies in the businesse of Tenures and Wardships and their neglect or not improving of them most of those former Officers and those that trucked with them not doing that right which they ought to their Consciences and their Kings and Benefactors Have for some ages past been so willing to ease their people or comply with their desires as they have noâ— regarded aâ— all their own profit or taken such a care as they might to retain â—hose just powers which were incident or necessary to their Royal Government but by leaving their bounty and kindnesse open to all the requests or designs of the people have like tender hearted parents given away much of their own support and sustenance to gratify the blandishments or necessities of their Children and not only enervated but dismembred and quitted many of their Regal powers and just Prerogatives in their grants of Lands and Liberties and thereby too much exhausted and abandoned the care of their own Revenue and Treasure as may easily appear to any that shall take but a view of those many Regalities Franchises and Liberties which being to be as a Sacrum patrimonium unalienable have heretofore either been too liberally granted by the Kings Progenitors of which H. 3. was very sensible in his answer to the Prior or Master of the Hospital of St. Johns at Jerusalem or not well looked after in those Incroachments and Usurpations which have been made upon them Or consider the very great cares and providence as well as prudence of former
ages in the Managing Collecting and Improveing of the Kings Revenue in England whether certain or casual The strict Inquiries Orders and the care of every thing which might make a profit or prevent a damage which made some of the Kings of England to be so litle wanting money as King Canutus as the Abby Book of Ramsey hath recorded it was able out of his Hanaper or travailing Trunk when he lodged at Vassington in Northamptonshire to lend the Bishop Etheruus who sâ—bita pulsus occasione had a great occasion to use it good store of money And that in William the Conquerours time and in the height of his plenty and prosperity no repairs of Castles and Houses were made but upon accompt by Oath Inquiries were made by some of the succeeding Kings and their Officers after windfalen trees a few trees were not given nor Cheverons nor Rafters allowed towards the repairing of a Grange or Farm without the warrant of the great Seal of England Judges commanded to look to the Fines imposed in the Eyreâ— or Circuits and in all the Eyres Circuits a Clark who kept particular Rolles or Duplicates of the Judges Rolles or Records of their Proceedings was for the King especially appointed and attended and as smal a sum as 2 d. accompted for a Deodand Nor was any thing as far as Humane vigilance Industry or Providence might foresee prevent or remedy suffered to be done or continue that might endammage or lessen the Royal Revenue which King Henry the 3 d. could so watch over as the Court of Exchequer hath sometimes seen him there sitting and taking his own accompts Which kinds of wariness and care have been so much disused or neglected by many of his Successors as though by time and the course thereof the alteration of the value of mony Coyne from twenty pence the ounce to five shillings a peny the ounce of Silver the prizes rates of Provision and Commodities to be bought with it almost yearly raised and inhaunced and the more chargeable way of living which followed thereupon might have put them in mind to have given lesse or demanded more for what was justly their own when as in the 14 th year of the Reign of King Edward the 3 d. 40 shillings per diem was thought by the King and his Councel to be a royal and sufficient expence for Edward Baliol King of Scots his train whilst he tarried at London and 6 s. per diem when he travailed And in the reign of King H. 6. Medow-ground in Leicestershire was valued but at eight pence an Acre and that as appears by a Remonstrance made in Parliament in or about the 11 th year of the reign of that King who was King in possession of France as well as of England now not above 227 years agoe he did right worshipfully as the Record saith maintain the charge of his houshold with sixteen thousand pounds Sterling per annum and could not then defray it with less than Twenty four thousand pounds per annum which now cannot well be done under ten times as much when an Annuity or Pension of ten pounds or twenty marks per annum which was then sufficient for the Kings better sort of Servants is now scarce enough for a Foot-man and the most ordinary sort of inferior Servants Did notwithstanding not lessen their bounty or raise the Rents or Rates of their Revenues but permitted their Escheators in matters of Tenures and Wardships to adhere unto their former courses and find the value of the Lands in their Offices or Inquisitions at the old or small yearly values the rule which the Escheators took for the finding of the values of the Lands upon Inquisitions being at the highest but the tenth part of the true yearly value which was the guide also for the rate of the primer seisins where they were to be taken as much lower as the unwarrantable kindness of too many of those which were trusted and should have looked better unto it could perswade them The Feodaries also upon their Surveys seldom raising the yearly value to more than about a third part of such a gentle value as he should be entreated to adde to that which the Jurors and Escheators had friendly found it So as somtimes a Mannor of above one hundred pounds per annum was found but at thirteen shillings four pence per annum and other times if mingled with other lands of a great yearly value at no more than forty shillings per annum And no longer agoe than in the reign of King Chaâ—les the first above one thousand poundâ— per annum hath been found to be but of the yearly vaâ—ue of twenty Marks And an Estate consisting of very few Mannors and as few Coppyholders but most in Fâ—rms and demâ—snes upon an improved and almost racked Rent worth six thousand pounds per annum found at no greater yearly value than one hundred eighty three pounds eleven shillings which is lesse than the thirtieth parâ— â—hough the Escheators with Knights and Gentlemen and sometimes men of greater mark and quality were Commissioners the Jurors made up somtimes of Gentlemen and most commonly of substantial Freeholders and all of them such as might better have understood an Oath who takeing an ill custom to be warrant enough for a bad Conscience did when they were by the Writ to enquire upon their Oaths de vero Annuo valore of the true yearly value of the Lands thâ—nk that they did honestly and well enough to find it at a very small or low yearly value because they were sure it was weâ—l worth so much Neither were the paymâ—nts o◠〈◊〉 of Homage so troublesom as to make a complaint of when as by an Order made in 13 Eliz. by virtue of her privy Seal by the Lord Burghley Lord Treasurer and the Chancellour and Barons of the Exchecquer which the Lords and Commons of England in primo Jacobi did pray and procure to be enacted by Parliament It was after such an easy and old fashioned rate or value of the Lands as it was but in every fifth Term to be paid in the Exchecquer by a rate and apportionment and might have been saved by an actual doing of Homage as was antiently used to be done upon their Livery and first coming to their Lands and their respit of Homage and howsoever may as well be taken to be a favour as they do of their mesne Lords or one to another in paying three shillings four pence per annum as a quit Rent for respit of suit of Court And that it was therein and thereupon also enacted that no processe ad faciendum Homagium or fidelitatem scire facias Capias or distresse should issue out of the Exchequer but upon a good ground And that the Clerks of the Treasurers Remembrancer in the Exchequer shall pay all issues that any shall loose after he hath paid ordinary Fine for respite of Homage
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
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
to charge the Heir An Heir may now be disinherited by the frowardness of an aged Father Instigated by the cunning and practise of a Step-mother whereas a third part could not have before been conveyed or given from him In Socage Tenures there will be nothing for the defence and safety of his Majesties Kingdome Person and People when every man shall be holding his Plow or be supposed to hold by it but the moyety of the Excise of Ale and Beer to the value of one hundred thousand pounds per annum The Kingdom will upon occasion of war or invasion lose the ready defence and personal service of the Nobility who held per Baroniam or as Tenants in Capite and of many worthy and able men Knights Esquires Gentry and other sufficient Freeholders and men of good Estate and Reputation well educated and fitted for war and compleatly armed on Horse-back not like to be Run-aways or treacherous which hold the remainder and yet to be discovered Knights Fees or any part thereof in an ordinary course of defence for forty days service which in those times and after the manner and way of war and the Militia then used was time enough to determine all or a great part of the unhappy controversies of War by and out of so many several Estates than at twenty pounds per annum since improved to two or three hundred pounds per annum with not a few of their Tenants Friends Servants and Attendants going along with them and may call or summon them to go with· him out of the Kingdom in case of a diversive War or otherwise which by the Statutes of 1 E. 3.8 E. 3.25 E. 3. 4 H. 4. 17 Car. he cannot do to Hoblers Archers Footmen or the Train Bands but in case of necessity and suddain comming of Foreign Enemies into the Realm and would have been sure of a gallant Army of Horse which being the more active and ready part of an Army fittest for charge or retreat forage or traversing a Country is by the French whose Nobless in War are presently on Horse-back and make it their Ioy and subsistence to appear in the defence of their King and Country found to be a great part of the Successe in war as well as the Persians have done who hath many times overcome the Turk by the strength of Horse as the Hungarians and Poles have often done And the Germans and Italians did heretofore make great use of their Nobility in Wars and made their Armies to consist most of Horse for that they presumed quod in Equestri militia praevalerent nobiles that the Nobility would do best and prevail when they served on Horseback for as the great Estates of England were held by Knight Service so it was most performed on horseback and such as found or furnished out Horses in War were to be men of Gentility and value and did in person go with their Prince or their Lieutenant and until H. 5. Time Gentlemen which every high Constable and Mechanique now thinks it to be too little to usurp the Title of were not distinguished by any Title of addition but by their forinsecum servitium which was Knight Service and in Kent where they claimed Gavelkind were never put under that kind of partition It must needs be very prejudicial to the King who is to protect his people and to his people who are to be protected by him when as the King that hath none or very few Inland Castles Citadels or places of strength as Holland Flanders France Italy Germany most Nations have to retard the March of an Enemy landed untill he can summon or call together his Subjects and Forces and cannot at once or upon a suddain be able to raise so many men as may be able to incounter or vanquish him in the Field Shall have no Legions or standing parts of an Army as Oliver and his Son Richard had paid at the charge of the publique to rally and unite at pleasure redresse Rebellions Repel and Oppose an Enemy and if need be visit him at home and make his Country rather than his own Sedem Belli the Stage of War to indure the Spoyles Plundrings Insolencies and free quartering of Souldiers But shall when the Floods shall rore and lift up their voice his Enemies compasse him in on every side and there be none to help him be as a Prince disarmed and left to intreat and expect the good will of his people or the care which they will be pleased to take for themselves in the first place for him at leasure hoping that they will not devide into parties of factions call or summon a Parliament which will take up forty days or six weeks and give the Enemy all that while the mastery of the field and time enough to make up all his advantages and in the mean time must not so much as require aid of them who have had their lands freely given them or of those who hold Offices or Annuities under him for the performance of their Homages Oaths Fealties Contracts Promises and grateful acknowledgments and when the Parliament are met must tarry until the majority of opinions shall agree how and in what manner he shall be helped which will not if it should be agreed upon the second or third day but useth not to be in so many weeks be speedily furnished when the mony must be first raised which in the late necessity of disbanding and paying of Souldiers could not be finished in two or three months and the men after leavied armed and cloathed which where the Enemy shall in the mean time have gained some Forts Passages or Counties will not be so ready a way or help at hand as the use of Tenures in Capite which like so many Garrisons invisibly dispersed but no way oppressing their several Neighbourhoods are upon the score of gratitude as well as loyalty quickly called out and imbodied which made the Kingdom have the lesse use of Forts Castles to be able in the Raign of King Stephen by agreement betwixt him and Henry the second to demolish at once 1150 Castles Will loose also his Homage of his Tenants in Capite and by Knight service being the Seminary and root of the Oath of Allegiance and the Genus or original of Fealty which saith Sir Edward Coke is a part of Homage and is so much saith Sir Henry Spelman a part of Homage as a release of Fealty is a discharge of Homage which the Oaths of Allegiance and Fealty the duty of them being now by the delusions of Satan too much disused and strangely Metamorphosed into factions will though the Oaths of Allegiance and Fealty should faile remain fixed and radicated in the Tenures of Lands in Capite and by Knight Service and when they concurre do altogether if rightly observed make a threefold Cord which will not easyly be broken and were therefore by as careful as wise Antiquity
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
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
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
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