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
and be admitted Turn the Tenures in Capite which are only so called from the duty of Homage and the acknowledgement of Soveraignity and Headship in the King into a Tenure in Socage which is so far from acknowledgeing the King to be chief or to ingage as the other doth their Lands to do him service as it is but a Tenure as it were a latere is no more then what one Neighbour may acknowledge to hold or doe to another for his Rent or money be a Lease for a Life or one or more years or as Tenant at will and levels and makes rather an equality then any respect of persons which if ever or at all reasonable or fit to be done is in a democratical or popular way of Government but will be unexampled and is not at all to be in Monarchy may make many of the people which are not yet recovered out of a gainful Lunacy to beleive they were in the right when they supposed themselves to be the Soveraigns Ireland which in the subverting Olivers time was to have their Swords by the like Tenure turned into Plow-shares though their warres and taxes were never intended to leave them was to pay but 12000 l. per annum to turn their better Tenures Conditions into worse will if they be not come again to their wits expect the like prejudicial bergain Bring many inconveniences and mischiefs to the Nobility and Gentry of Scotland if their Tenures in Capite and Knight service and those which are holden of them as Mesn Lords shall as ours be taken away with their services and dependencies Licences of Alienation benefits of Investitures infeodations and the like it being amongst others as a reason given for Wardships in that Kingdom in the Laws of Scotland in the reign of their Malcombe the 2. which was before the Conquerours entring into England Ne non suppeterent Regiae Majestatis facultates to the end that the King should have where-withall to defend the Kingdom And a letting loose of a fierce and unruly people who are best of all kept in awe order by a natural long well enough liked subjection to their Mesne Lords and Superiours into a liberty which cannot be done without a disjointing and over-turning all the Estates of the Nobility and Gentry of that Kingdom and may like our late English Levellers either endeavour to do it or bring themselves and the whole Nation to ruine by a renversing of the fundamental Laws and that antient order and constitution of that Kingdom wherein the estates and livelyhood of all the Nobility and Gentry and better part of the people are hugely concerned And besides a great damage to the King in his Revenues and profits arising out of such Tenures if not recompenced by some annual payment Will howsoever take away that antient Homage and acknowledgement of Superiority which from that Kingdom to this of England cannot be denyed to be due and to have been actually and antiently done and presidented and not in one but several ages fidem obsequium ut vassallos Angliae Regibus superioribus dominis jurejurando promisisse to have done their Homage and Fealty as vassals to our English Kings and bound themselves by oath thereunto as namely to Alfred Edgar Athelstane William the Conqueror William Rufus Maud the Empresse Henry the second and Edward the first the later of whom with all the Baronage of England in a Letter to the Pope did upon the search of many Evidences and Records stoutly assert it Will be no small damage and disturbance to the Kings other Regalities and Prerogatives and in the Tenures of the Cinque Ports who are to provide fifty ships for the guarding of the Seas and the Town of Maldon in Essex one the Town of Lewis in Sussex as the Book of Doomsday informeth where King Edward the Confessor had 127 Burgesses in dominio eorum consuetudo erat si Rex ad Mare custodiendum sine se suos mittere voluisset de omnibus hominibus cujuscunque terrae fuissent colligebant 20 sâ—lidos hos habebant qui in manibus arma custodieâ—ant had 127 Burgesses in his demeâ—ne of the King and when he sent any of his men to guard the Seas they were to gather 20 s. a man which was to be given to those that manned the Ships in Colchester where the custom then was that upon any expedition of the Kings by Sea or Land every house was to pay six pence ad victum soldariorum Regis towards the quarter or livelyhood of the Kings Souldiers and likewise prejudice him in his grand and Petit Serjeanties and many thousand other reservations of honour and profit by and upon Tenures in Capite and Knight service which revived and called out of their Cells wherein those that are to do and pay them are content they should sleep and take their rest for ever would go near to make and maintain an Army with men and Provisions The King when the Tenures in Capite shall be taken away shall never be able to errect his Standard and to call thereunto all that hold Lands Fees Annuities and Offices of him to come to his assistance according to the duty of their Tenures and the Acts of Parliament of 11 H. 7. chap. 18. And 19. H. 7. chap. 1. of forfeiting the Lands and Offices holden of him under the penalties which was the only means which the late King his Father had to protect as much as he could himself and his Subjects or to manifest the justice of his Cause in that War which was forced upon him and was very useful and necessary heretofore for the defence of the Kings of England and their People and proved to be no otherwise in the Bellum Standardi so called in the reign of King Stephen where some of the Barons of England and some of the English Gentry gathered themselves to the Royal Standard and repelled and beat the King of Scotland and in several Kings reigns afterwards repulsed the Scotch and Welch Hostilities and Invasions and at Floddon Field in King H. 8 ths time when the Duke of Norfolk and his Son the Earl of Surrey and diverse of the Nobility and Gentry which accompanied them vanquished and slew the King of Scots The benefit whereof the Commons of England had so often experimented as in diverse Parliaments they Petitioned the King and Lords to cause the Lord Marchers and other great men to repair into their Counties and defend the borders and was so necessary in France to assemble together the Bans and Arrierebans which were but as our Tenants in Capite as it helped King Charles the 7 th of France to recover that Kingdom again out of the hands and possession of our two Henries the 5. and 6. Kings of England And if any Rebellion or Conspiracy shall hereafter happen When Cum saepe coorta Seditio saevitque animis ignobile vulgus Fury and Rage of
sint semper prompti parati ad servicium suum integrum explendum peragendum cum semper opus adfuerit secundum quod debent de â—eodis tenementis suis de jure facere Appointed and commanded that all Earls Barons Knights and their Servants should be ready with their Horse and Arms as they ought to do their Service which they owed and were to do for their Fees and Lands when need should require and was beneficial to the Vassal or Tenant CAP. II. The holding of Lands in Capite and by Knight Service is no Slavery or Bondage to the Tenant or Vassal FOr his lands were a sufficient recompence for the service which he performed for them and his Lord besides the lands which he gave the Tenant gave him also a protection and help in lieu of the service which he received from him For though as Bodin observeth vassallus dat fidem nec tamen accipit The Tenant makes fealty to his Lord but receiveth none from him there is betwixt them mutua fides et tuendae salutis et dignitatis utriusque obligatio contracta a mutual and reciprocal obligation to defend one another And when the Donee had lands freely conferred upon him and his Heires upon that consideration omnia feoda as well in Capite and Knights service tenure as Copy-hold and more inferior Tenures being at first ad arbitrium Domini no man can rightly suppose that he would refuse the reservation of Tenure and incidents unto it or imagine it to be a servitude or any thing else but an Act of extraordinary favour arising from the Donor which by the Civil Law and Customes of Nations chalenged such an hereditary gratitude and return of thankfulnesse as amongst many other priviledges thereupon accrued to the Donor if any of the Heires of the Lord of the Fee happened to fall into distresse the Heires of the Tenant though never so many ages and descents after were to releive them Domini utilitatem proferre et incommoda Propellere et si cum poterit non liberaverit eum a morte feudo sive beneficio suo privabitur such a Donee or Tenant was to advance the good of his Lord or Benefactor and hinder any damage might happen unto him and forfeit and be deprived of those lands if he did not when he could rescue him from death for Feudum ut habeat et Dominum non juvet rationis non est it is no reason that he should enjoy that land or benefit and not help or assist him which gave it and by our Law if such a Tenant ceased to do his service if not hindred by any legal impediment by the space of two years upon a Cessavit per Biennium brought by the Lord the land if no sufficient distresse was to be had was forfeited if he appeared not upon the distresse and paid the arreares And such Tenure carrying along with it an end and purpose in its original institution not only of preservation and defence of the Donor but of the Kingdome and protection also of the Tenant and the land which was bestowed upon him And being a voluntary and beneficial paction submitted unto by the Tennant insomuch as Feudum whether derived from the German word Feec or warre or a fide prestanda or a faedere inter utrosque contracto is not seldom in the Civil Law called beneficium may with reason enough be conceived to be cheerfully after undergone and approved of by the Tennants and their Heirs receiving many Privileges thereby as not payign any other aydes or Tallages besides the service which their Tenures enjoyned them w ch by a desuetude or necessity of the times is not now allowed them not to be excommunicated by the Pope or Clergy which H. 2. amongst other Laws and Customes observed in the time of his Grandfather H. 1. in the Parliament at Clarindon claimed as a special priviledge belonging to him and those which held of him in capite which in those days was worthily accounted amongst the greatest of exemptions and of creating like Tenures to be holden of themselves with services of War Wardship Marriage and other incidents to have their heirs in minority not only protected in their persons and estates which in tumultuous and unpeaceable Times was no small benefit but to be gently and vertuously educated in Bellicis artibus feats and actions of arms taught to ride the great horse and manage him and himself compleatly armed with Shield and Launce married without disparagement in his own or a better rank and quality his equitatura or Horse and Arms could not be taken in execution unless he dishonourably absented himself when his service was required and then all that he had was subject to execution saving one horse which was to be left him propter dignitatem militiae and have no usury which in those dayes especially until the reign of E. 1. By Jews and a sort of foreiners called Caursini was very oppressive and intollerable run upon them for their fathers Debts whilst they were in wardship Besides many other great priviledges belonging to Knights Gentry the original of many of whom was antiently by Arms and military service allowed them by our Laws of England as wel as by the Civil Law and Law of Nations as to bear Arms make Images and Statues of their Ancestors and by the Civil Law a preheminence that more credence should be given by a Judge to the oath of two Gentlemen produced as Witnesses then to a multitude of ungentle persons ought to be preferred to Offices before the ignoble in â—uâ—io enim presâ—mitur pro nobiliâ—ate ad efficia regenda and honoured in the attire and apparrel of their bodies as to wear Silks and purple colours and ex consâ—eâ—udine non suspenduntur sed decapitantur are not when they are to suffer death for offences criminal used to be hanged but beheaded with many other priviledges not here enumerated which our common people of England in their abundance of freedom have too much forgotten Were so much respected here in the raign of H. 2. saith the eminently learned Mr. Selden as one was fined one hundred pounds which in those days of more honesty and less mony was a great sum of mony for striking a Knight and another forty Marks because he was present when he was compelled to swear that he would not complain of the injury done unto him the grand Assize in a writ of right which is one of the highest Trials by Jury and Oath in the Law of England is to be chosen by Knights and out of Knights a Baron in a Jury for or against him may challenge the Pannel if one Knight at the least were not returned of the Jury if a Ribaud or Russian stroke a Knight without cause he was to loose the hand that struck him Kings have Knighted their eldest Sons and somtimes sent them to neighbour Kings to receive that Honour and Barons and Earls
innocent as useful Tenures in Capite and Knight service of bettering the condition of the Commonwealth and people increasing their Liberties and content and to maintain and keep them in a most happy peace and plenty which will never be done if the Sword and Scepter of the King shall only be like the Ensignes and Ornaments of Regality and made only to represent a Majestie there will another difficulty stand in the way and meet the design of doing it by Act of Parliament and offer this question to consideration Whether an Act of Parliament and the consent of the House of Peers the desire of all the Commons and People of England which must be understood to be signified by their Representatives and the Roy le veult the King giving life and breath and being to it can in the great power and respect which ever hath been by the Law and justly ought to be always attributed unto it Take away Tenures in Capite and by Knight service grand and Petit Sejeanties Homage and all other incidents belonging unto them or the right which the Nobility and Gentry and mesne Lords have to enjoy their Tenures by Knight service the incidents thereunto belonging Which howsoever that in many other things it hath been said that Consensus tollit errorem Conventiâ— vincit Legem Consents and Agreements are more binding then Law will by the Laws of God and Nature and Nations and the Laws of this Kingdom and the opinion of some eminent and learned Sages and Lawyers thereof be resolved in the Negative viz. CHAP. VII That Tenures in Capite and by Knight service holden of the King and the Homage and Incidents thereunto appertaining and the Right of the Mesne Lords cannot be dissolved or taken away by any Act of Parliament FOR that Gods Law and the Law of Nature and Nations have taken care not only to preserve the Rights of Soveraignity and the means and order of Government but the Rights property of every particular Subject do prohibit all injustice it is a Maxime or Aphorism undeniable that Laws made against the Word of God the Laws of Nature or which are impossible or contra bonos more 's right Reason or natural Equity will be void in themselves be the Seal or Stamp of Authority never so eminent And therefore if as the Law hath often determined that the Kings Charters are void and not pleadable by Law when they are repugnant to the Laws Acts of Parliament Maxims and reasonable Customs of the Realm that it is not in the Kings power by his Charter or last Will and Testament to grant away the Crown of England to another Prince or Potentate as it was resolved in the Case of the supposed grant of King Edward the Confessor to William Duke of Normandy and that grant of King John to the Pope to hold England and Ireland of him and that notwithstanding the grant made by William the Conquerour to Hugh Lupus of the Earldom of Chester tenendum per gladium and ita libere as the King himself did hold England the Earldom of Chester was holden of the King that the grant of King H. 2. to the Monks of St. Bartholomews in London that the Prior the Monks should be as free in their Church as the King was in his Crown was adjudged to be void for that the Prior and the Monks were but Subjects and that by the Law the King may no more denude himself of his Royal Superiority over his Subjects then his Subjects can renounce or avoid their subjection to their King and the reason why such or the like grants of the King by his Charter are void is not in regard it was granted without the consent of the people in Parliament but that it was in disherison of his Crown and disabling himself to govern or if he should by his grant exempt a man from paying his Debts or maintenance of hise Wife and Children the joyning of the Lords and Commons with him in an Act of Parliament would not make such a Law to be binding or obligatory And therefore the King cannot saith Dier release or grant a Tenure in Capite to any Subject Dier 44. when King Edward the 3 d. granted to the Black Prince his Son the grant of the Dutchy of Cornwal all Wards Marriages and Reliefs non obstante the Kings Prerogative it was adjudged that the Prince could not seise a Ward which held of the Kings Ward because it belonged to the King by his Prerogative And in 2 R. 2. Robert de Hauley Esquire being arrested and pursued upon an Action of Debt in Westminster Abby where he took Sanctuary was in the tumult slain at the high Altar when the Priest was singing high Masse And the offence and breach of priviledge as it was then pretended to be complained of in Parliament by the Arch-Bishop of Canterbury and the rest of the Prelates and Clergy and prayed that due satisfaction and amends might be made of so horrible a fact It was opposed by the Lords and Commons and they vouched Records and called to witness the Justices and others that were learned in rhe Lawes of the Land that in the Church of England it hath not been accustomed nor ought to have Immunity for Debt or Trespass or other Cause whatsoever except for Crime only And certain Doctors of Divinity Canon and Civil Lawes being thereupon sworn and examined before the King himself to speak the plain truth said upon mature and sound deliberation that in case of Debt Accompt or Trespass where a man is not to lose life or member no man ought to have Immunity in holy Church and said further in the highest expressions those times could afford that God saving his Perfection the Pope saving his Holiness nor any King or Prince can grant such a priviledge and that if the King should grant such a priviledge the Church is and ought to be favoured and nourished ought not to axcept of it whereof offence or occasion of offence may arise for it is a sin and occasion of offence saith the Record to delay a man willingly from his Debt or the just recovery of the same And if an Act of the Commons alone or of the Lords alone or of both together cannot amount to an Act of Parliament the King himself cannot grant away his Regality or Power or means of governing by his Charter or any Act which he can singly doe his concurrence with both the Lords and Commons can no more make an Act to confirme that which should not be done or granted then his own grant or Charter could have done or than if he and the House of Commons only had made an Act As it appeareth by the Ordinance which the Lords Ordainers so from thence called did obtain from Edward 2. whereby he delegated much of his Regal Authority unto them which was afterwards complained of in Parliament made void and the Authors or Lords Ordainers
Oath of him That he would not deal falsly with him nor with his Sons son but according to the kindnesse that he had done unto him and to the Land in which he had Sojourned And that Abraham thereupon swore which somewhat resembles our Oath of Fealty or Fidelity and took Sheep and Oxen for then Pecus was instead of pecunia which is derived a Pecude and gave unto Abimelech and both of them made a Covenant It will though as in many other matters not tending to mans Salvation which are not expressed in the sacred Story there is not so full and clear a light evidence as to intitle the holding of Land by the service of going to War to so great a Warrant or Original as that of a Scripture direction or example Notwithstanding be no wild or improbable conjecture that some such or the like obligations more than the affections good will of the people did lye upon them or their Estates not to forsake their King and Country in time of Wars and distresse the Law of Nature teaching the necessity of the Members readinesse and combination to preserve the head its well being as well as their own Estates and well beings in that of their King or Supreme Governour and every mans particular in the General when as the antient Inhabitants of the Earth or some of them at least as appears by Iacobs blessing to his Sons upon his Death-bed became Servants to Tribute and Moses by the advice of Iethro his Father-in-law did choose able men ouâ— of all Israel and made them Heads over the people and Rulers which were afterwards called Captains of thousands Rulers of hundreds fifties and tens to be as a standing and certain Militia and all the people young and old that had not rebelled with Absalom went out with David Rehoboham his Grandchild ouâ— of the two Tribes of Iudah and Benjamin could muster an hundred and fourscore thousand chosen men which were Warriors to preserve their Prince in War and defend his as well as their own Estates and that some such or the like obligations passed betwixt Solomon and Hyram King of Tyre when he gave him the twenty Cities in the Land of Gallilee And that from thence either by Tradition or Travel of Philosophers or wise men into those more knowing Countries and Regions of Palestine or Egypt where Gods chosen and peculiar people of Israel had a nearer communication with him and his Divine Illuminations or by those secret dictates and the Edicts Statutes and Decrees of the Law of Nature whereby as the Judicious and Learned Hooker saith Humane Actions are framed and the Chincks and Crannyes by which the wisdom of the Almighty that intellectual worker as Plato and Anaxagoras stiled him is wont imperceptibly to diffuse impart its impressions into the Customs and manners of men That custom now about 2293 years agoe used by Romulus in his new established City or Empire of Rome took its rise or beginning of appointing the Plebeian or common people to make choyce of whom they could out of the Patricij Senators or Eminent men to protect them in their causes or concernments in recompence or lieu whereof the Clyents were to contribute if need were to the marriages of their Daughters redeem them or their Sons when they were taken Captives in War as bearing a reverence or respect to their Lords or Patroni to the end that they might be defended by them that they should reciprocally propter beneficium the help favour received from them maintain and defend their dignity and that duty or Clientela was therefore not altogether improperly called Homagium or Homage as a Service pro beneficio prestandum for a benefit had or to be injoyed accipitur pro patrocinio protectione and taken to be as a patronage and protection insomuch as upon the Conquest or reducing of any province into their obedience they did in Clientelam se dare Romanis acknowledge a Duty or Homage either to the Senate or certain of the Nobility or great men to be their Patroni or Protectors quae necessitudo or near relations which were betwixt tâ—em id serebat saith Oldendorpius ut Clientes perpetua Patronorum protectione defenderentur ac vicissim eos omni obsequio colerent brought it so to pass that the Clyents enjoyed a constant protection of their Patrons or great men and exhibited for it a duty and obedience unto them From which kind of Customes and usages Tutandae vitae ac fortunarum omnium for the defence of life and estate veluti scintillis quibusdam caepit initium benificiariae consuetudinis quae aucta est multum propter continuam bellorum molestiam as from increasing sparkes or small beginnings that beneficial Custom taking its original which by continuance of wars and troubles was much increased another kind of Clientela was introduced though there be as Craig saith a great difference betwixt Clientela and Vassalagium qua vel dignitas vel praedium aliquod alicui datur ut et ipse istius posteri et haeredes beneficii auctorem perpetuo agnoscant et quasi pro Patrono colant ejusque caput existimationem et fortunas tueantur whereby either some dignity or lands were given to any one to the end that he and his heirs should always acknowledge the giver to be the Author of that benefit reverence and esteem him as their Patron and defend him and his life reputation and fortunes In resemblance whereof or from the eommon principle of Reason that private or particular men or their estates cannot be safe or in any good condition where the publick is either afflicted or ruined was the use or way of Tenures in Capite or Knights Service found out and approved by Kings and Emperours ut cum delectus edicitur in militiam eant vel vicarium mittant vel certum ceâ—sum domini aerario inferant that when a muster was to be made or a going to War they should either go in person or send one in their stead or pay a certain raâ—e in mony and was so antient and universal as whilst the Germans would intitle themselves to be the first of Nations introducing it the Gaules or French were so unwilling to come behind them as they indeavour out of Caesars Commentaries to make themselves the right owners of it where he saith that Eos qui opibus inter Gallos valebant multos habuisse devotos quos secum ducerunt in bello Soldarios sua lingua nuncupatos quorum haec erat conditio ut omnibus in vita commodis cum ijs fruerentur quorum amicitiae se dedissent quod si quid pervim accidisset aut cundem casum ferrent ipsi aut mortem sibi consciscerent the Gauls which were rich or had good Estates had some which were devoted unto them which followed them in the Wars in their language were called Souldiers and injoyed a livelyhood
shillings for a whole Knights Fee and after that rate proportionably ibm 35. If the Guardian maketh a Feoffement of the Wards Lands he shall have a Writ of Novel disseisin and upon recovery the Seisin shall be delivered to the next friend and the Guardian shall loose the Wardship 3. E. 1. ca. 47. Usurpation of a Church during the minority of the Heir shall not prejudice him 13 E. 1.5 Admeasurement of Dower shall be granted to a Guardian and the Heir shall not be barred by the suite of the Guardian if there be collusion 13 E. 1.7 Next Friends shall be permitted to sue if the Heir be â—loyned 13 E. 1.15 If part of the Lands be sold the services shall be apportioned Westmr. 3.2 Escheators shall commit no waste in Wards Lands 28 E. 1 18. If Lands without cause be seised by the Escheator the Issues and Mesne profits shall be restored 21 E. 1.19 where it is found by Inquest that Lands are not holden of the King the Escheator shall without delay return the possession Stat de Escheatoribus 29 E. 1. Escheators shall have sufficient in the places where they Minister to answer the King and his People if any shall complain 4 E 3.9.5 E. 3 4. Shall be chosen by the Chancelour Treasurer and chief Baron taking unto them the chief Justices of the one bench and the other if they be present and no Escheator shall tarry in his office above a year 14 E. 3.8 A Ward shall have an action of waste against his Guardian and Escheators shall make no waste in the Lands of the Kings wards 14 E. 3 13. Aid to make the Kings Son a Knight or to marry his Daughter shall be in no other manner then according to the Statute thereof formerly made 25 E. 3 11. Traverses of offices found before Escheators upon dyings seised or alienations without licence shall be tried in the Kings Bench 34 E. 3 14. An Escheator shall have no Pec of wood fish or venison out of the wards Lands 38 E. 3 13. An Idempnitate nominis shall be granted of another mans Lands seised by an Escheator 37 E 1.2 No Escheator shall be made unless he haue twenty pounds Land per annum or more in Fee and they shall execute their offices in proper person the Chancellor shall make Escheators without any Gift or Brokage and shall make them of the most lawful men and sufficient 12 R. 2.2 An Escheator or Commissioner shall take no Inquest but by such persons as shall be retorned by the Sheriff they shall retorn the offices found before them and the Lands shall be let to farm to him that tendereth a Traverse to the office 8 H. 6.16 Inquisitions shall be taken by Escheators in good Towns and open places and they shall not take above forty Shillings for finding an office under the penalty of forty pounds 23 H. 6 17. Women at the age of fourteen years at the time of the death of their Ancestors without question or difficulty shall have Livery of their Lands 39 H. 6.2 No office shall be retorned into any of the Kings Courts by any Escheator or Commissioner but which is found by a Jury and none to be an Escheator who hath not forty markes per annum above all reprises the Jurors to have Land of the yearly value of forty shillings within the Shire the Forman of the Jury shall keep the Counter part of the Inquisition and the Escheator must receive the Inquisition found by the Iury as also the offices or Inquisitions shall be received in the Chancery and Exchequer 1 H. 8 ca. 8. Lands shall be lâ—t to farme to him that offereth to traverse the office before the offices or Inquests retorned or within three Months after 1 H. 8 ca. 10. the respite of Homage of Lands not exceeding five pounds per Annum to be but eight pence the yearly value of Lands not exceeding twenty pounds per annum to be taken as it is found in the Inquisition except it by examination otherwise appear to the Master of the Wards Surveyer Atturney or Receiver General or three of them or that it shall otherwise appear and be declared in any of the Kings Courts No Escheator shall sit virtute officii where the Lands be five pounds per annum or above the Escheator shall take for finding of an office not exceeding five pounds per annum but six Shillings eight pence for his Fee and for the writing of the office three Shillings four pence for the charges of the Jury three Shillings and for the officers and Ministers of any Court that shall receive the same Record two shillings upon pain of five pounds to the Escheator for every time so offending the Master and Court shall have power to moderate any Fines or Recognisances 33 H 8.22 The Heir of Lands not exceeding five pounds per annum may sue his General Livery by warrant only out of the Court of wards although there be no Inquisition or office found or certified The Interest of every lesser Tenant for Term of years Copy-holder or other person having interest in any Lands found in any office or Inquisition shall be saved though they be not found by office The Heir upon an aetate probanda shall have an oustâ—e le maines and the profits of his Lands from the time that he comes to age and if any office be untruely found a Traverse shall be allowed or a Monstrans de Droit without being driven to any petition of right though the King be entitled by a double matter of Record A Traverse to an office shall be allowed where a wrong Tenure is found an ignoramus â—ound of a Tenure shall not be taken to be any Tenure in Capite and upon a Traverse a Scire facias shall be awarded against the Kings Patentee 2 and 3 E 6. ca. 8. And if there had been any certain or common grievances or so much as a likelyhood of any to have risen or happened by such Tenures and benefits which many were the better for and had no reason at all to find fault with w ch many more were striving to deserve of the Kings of England the Nobility great men of this Kingdom the Parliaments that have been ever since the 8 th year of the reign of H. 3. would not have made so many Acts of Parliament for their establishment or tending to their preservation if we should believe as it cannot be well denyed that Parliaments have been sometimes mistaken and enacted that which they have afterwards thought fit to repeal Yet it comes not within the virge or compass of any probability that Parliaments where all grievances are most commonly represented should for almost four hundred years together in a succession of many Kings Parliaments enact or continue grievances instead of remedies neither find those Tenures to be inconvenient or not fit to be continued or so much as complain of them but as if they were blessings of a
themselves for their Allegiance to their King following of the Scripture their Consciences and the known Laws of the Land were notwithstanding their many Petitions and Importunities several years whilst their estates were Sequestred and taken from them kept in a starving Condition before they could be heard to litle purpose where Sons and too well descended to be so unworthy were invited to accuse their Loyal Aged Parents whom the Jewes would have rent their Clothes to have seen encouraged and made to be sharers in the spoyl of their Father Not like the Committee or Court improperly called at Salters-Hall for relief of Creditors against their imprisoned Debtors where some of those Judges and Committees if not wronged by printed Complaints were in good hopes to have made some preparations to sell the Debtors Lands to their Friends or Kindred at good Penniworths Nor like the Committee for Plundring rather than Plundred Ministers who to take away all the Benefices of England and Wales from the Tribe of Levi and confer them upon the Tribe of Issachar and their Factious and Mechanique guifted Brethren and keep out the Orthodox and learned Clergy could make their costly orders for the trial of them that were more Learned then themselves concerning the Grace of God and their utterance for Preaching of the Gospel with private and deceitful marks and litle close couched or interposed Letters hid or put under or over some other Letters whereby to intimate to their Subcommittees in the Countries that howsoever the men were without exception and found to be so upon Certificates and Examination they were to be delayed and sent from Post to Pillar and tired boâ—h in their Bodies and Purses and be sure never to be instituted and inducted But was a Court compos'd of grave learned knowing and worthy Masters of the Wards such as William Marquesse of Winchester William Lord Burghley and his Son the Earl of Salisbury and many other who made not the Court or any of the businesse thereof to Lacquy after their own Interest Had for Attorney Generalls of that Court who sate as men of Law and Judges therein and assistants to the Masters of the Wards Richard Onslow Esq afterwards Speaker of the House of Commons Sr. Nicholas Bacon Knight afterwards a most learned Lord keeper of the great Seal of England and a great Councellor of Estate to Queen Elizabeth Sr. Henry Hobart afterwards Lord cheif Justice of the Court of Common-pleas Sr. James Ley Knight and Baronet afterwards Lord cheif Justice of the Court of Kings Bench after that Earl of Marleborough and Lord Treasurer of England Sr. Henry Calthrop Knight Sr. Rowland Wandesford Knight and Sr. Orlando Bridgeman Kt. now Lord Chief Justice of the Court of Common pleas all very eminently learned Lawyers and of great estates honour honesty and worth in their several generations who upon any difficult or weighty matter of Law to be discussed in that Court did usually intreat the presence and had the assistance of the Lord cheif Justices Lord cheif Baron or of any of the other learned Judges of the Land whom they should please to invite unto them where a variety of learning grave deliberations a great care of Justice and right reason most lively and clearly represented have left to posterity as guides and directions for after ages those conclusions and resolutions of cases of great learning and weight in that Court reported by the Lord Dier Cook and other learned Sages of the Law Nor were the Masters of the Wards Attorneys Auditors or Escheators loosely tied by Oaths as some of the Committee Jurisdictions were when they did swear only in general faithfully according to their best skill and knowledge to discharge the trust committed to them and would not for favour or affection reward or gift or hopes of reward or gift break the same Or as little restraining them from Acts of Oppression or Injustice as the Oath of the Controlers for the sale of the Kings and Queens lands ordered by that which called it self a Parliament 17. July 1649. The Oath of the Commissioners for managing the estates of Delinquents Sequestrations at Haberdashers-Hall Ordered by no better an Authority the 15 of April 1650. or that which by that which would be called an Act of Parliament of the 10 of December 1650. for establishing an high Court of Justice within the Counties of Norfforlk Suffolk Cambridge and Huntington for the Tryal of Delinquents was only ordered was to be taken by those that were to be the Judges that they should well and truly according to the best of their skill and knowledge execute the several powers given unto them Which bound them not from doing wrong to those whom they made to bear the burdens of all the cruelties which they could possibly lay upon them But were compassed and hedged in by Oaths as warily restraining as they were legal for the Master of the Wards was by Act of Parliament enjoyned to swear to minister Justice to Rich ond Poor to the best of his cunning and power to take no gift or reward in any Case depending before him and to deliver with speed such as shall have to do before him The Attorney was sworn truely to counsel the King and the Master of the Court and with all speed and diligence to endeavour the hearing and determination indifferently of such matters and causes as shall depend before the Master of the Wards and shall not take any gift or reward in any matter or cause depending in the same Court The Auditors sworn to make a true allowance in their Offices to every person which shall be accomptant before them and not to take or recieve of Poor or Rich any gift or reward in any matter or cause depending or to be discussed in the Court but such as shall be ordinarily appertaining to their Offices and the Escheators to treat all the people in their â—ayliwicks truely and righteously to do right to every man aswell to poor as to rich do no wrong to any man neither for promise love nor hate nor no mans right disturb do nothing whereby right may be disturbed letted or delayed and shall take their Enquests in open places and not privy And might better content the people Then when in former ages the Wardships and their disposing were left to the care and order of the Chancellour as to Thomas Bâ—cket in H. 2. time or to Hubert de Burgh Chief-Justice and Earl of Kent in the Reign of H. 3. sometimes to the Treasurers or Chamberlains most comonly let to farm by Escheators sometimes by under-Sherifs or when the next Wardships or Escheats that should happen were before hand assigned towards the payment of some of the Kings Debts as to William de Valence Earl of Pembroke in the Reign of E. 1. or that the Wardships and Escheats which should happen in 6 or 7. Counties were before hand granted to some particular man And can
Wigorniensis mentioned by that learned Knight Sr. Roger Twisden in his preface to the Laws of William the Conquerour published by the eminently learned Mr. Selden informs us did importune Maud the Empresse ut eis Edwardi Regis Leges observare liceret quia optimae erant That the Laws of King Edward might be observed because they were the best And when William the Conquerour ordered the Rents and Revenues of such as held of him to be paid into the Exchequer it was non simpliciter nec haeres ab hereditate nec ut ab ipso haereditas tollitur sed simul cum haereditate sub Regis custodia constitutus tempâ—râ— pupillaris aetatis Not to take away the Inheritance but to keep and educate him during his Minority For It could be no inconvenience to the publick welfare of the Nation to have the Children of the best ranck and quality for such were then the Tenants in Capite and by Knight service virtuously and nobly educated in Arts and Arms whereby to be enabled to do their Prince and Country service and their Lands and Estates in the interim to be protected and defended from Neighbour or other injuries Nor to be married to their own degree or a nobler quality when as by the means of intermarriages betwixt the Saxons Normans as between Lucia the Sister of Morchar Earl of Northumberland a Saxon and Juo Talbois a great Norman Baron and betwixt Ralph de waiet a Saxon by a British or Welch Woman Emme the Daughter of William Fitz Osbern Earl of Hereford by which he was by the Conquerour made Earl of the East Angles And many more which might be instanced their mutual discontents and animosities calming into reconciliations and friendships had the like effect as the tye and kindness of the intermarriages had not long before in King Ina's time who himself marrying with Guala a British woman his Lords and great men intermarrying with the Welch Scots their Sons also marrying with their Daughters the Nation became to be as Gens una one people in a near consociation and relation and the Norman H. 1. afterwards found it to be not unsuccessefull in his own marriage with Matilda the Daughter of Malcolm King of Scots by the Sister or Niece of Edgar Atheling of the Saxon Royal line It was no grievance when the Charter of Liberties which was the original of a great part of our after Magna Charta was granted to the people of England by K. H. 1. who is therein said omnes malas consuetudines quibus Anglia opprimebatur auferre to abolish all the evil customs with which England was oppressed when it would have been strange that Tenures in Capite and by Knight service should remain as a part of the Kings just prerogative and be so well liked of and approved consilio consensu Baronum By advice and consent of the Barons if there had been any grievance originally or naturally in them Nor so much as a Semblance of it in the reign of H. 2. when a general Inquisition was made per Angliam cui quis in servitio seculari de jure obnoxius teneretur thorough England What secular or temporal services due by Law were not performed And as little in the Parliament at Clarendon in the same Kings reign where in the presence of the King Bishops Earls Barons and Nobility facta fuit recognitio sive recordatio cujusdam partis consuetudinum libertatum Antecessorum suorum Regis viz. Henrici Avi sui aliorum quae observari debâ—bant in Regno ab omnibus teneri A recapitulation and rehearsal was made of some of the Customs and Liberties of their Ancestors and of the King that is to say of King H. 1. and others which ought of all to be observed and kept in the Kingdom in which there was nothing against the Feudal Laws or Tenures in Capite and by Knights service but many expressions and allowances of them And if otherwise it would have been something strange that the issue and posterity of those Barons should in King Johns time adventure all that could be dear or near unto them to gain the Liberties granted by H. 1. with some addition and never grudge that King the same Prerogative when as hazarding the forfeiture of their own Magna Charta of Heaven to gain a Magna Charta on Earth for their posterities They had greatly over-powered their King at Running Mede where their Armies stood in procinctu acie Facing one another Pila minantia pilis Threatning death and distruction to each other or would so willingly have hung up their Shields and Launces and returned to their peace and obedience by accepting of that Magna Charta if they had not taken it to be as much for their own defence the good of the Kingdom as it was for his nor so willingly afterwards in the reign of King Henry the 3 d. his Son have clad themselves in Steel made a Combination and bouâ—d themselves by oath one to another never to submit to a peace until they had a just performance of what his Father had granted them endured the Popes then direful Fulminations and never rested until the King himself had confirmed that Magna Charta by a most solemn oath in procession with the Bishops who with lighted Tapers in their hands anathematiz'd all the infringers thereof if Tenures in Capite and the enableing their Prince to defend them had not been a part of their own Liberties nor could they be imagined to be otherwise when as by an Act of Parliament also of that King the great Charter was to be duely read in all Counties of England and Writs and Letters were sent to all the Sheriffs of England commanding them by the oaths of twelve Knights of every County to enquire what were the antient Rights and Liberties of the People no return was ever made that Tenures in Capite and by Knight service either were or could be any obstructions to them or that so often bloodily contested and too dearly purchased Magna Charta nor was it any publique grievance when as in the Parliament of 26 H. 3 in a great contest betwixt him and the Baronage and great men of England touching his ill Government and diverse exactions and oppressions the profits which he had by his Tenures and Escheats were said to have been sufficient to have kept him from a want of mony and oppressing his Subjects Nor in Anno 42. H. 3. when the King upon those great complaints and stirres betwixt him and the then Robustious and sturdy Barons of England occasioned by his misgovernment which busied the people with Catalogues of grievances he by his Writs or Commissions appointed in every County of England Quatuour milites qui considerarent quâ—t et quantis granaminibus simpliciores a fortioribus opprimuntur et inquirent diligenter dâ— singulis quaerelis et injurijs a quocunque factis
the Arch-Bishop of Canterbury by agreement and composition made betwixt the said Earl and Boniface Arch-Bishop of Canterbury in the raign of King H. 3. by the service of four Knights Fees and to be high Stewards and high Butlers to the Arch-Bishops of that See at their Consecration taking for their service in the Stewardship seven competent Robes of Scarlet thirty gallons of Wine thirty pound of Wax for his light livery of Hay and Oates for eighty Horse for two nights the Dishes and Salt which should stand before the Arch-Bishop in that Feast and at their departure the dyet of three dayes at the cost of the Arch-Bishop at four of his then next Mannors wheresover they would So that the said Earls repaired thither but with fifty Horse and taking also for the Office of Butlership other seven like Robes twenty gallons of Wine fifty pound of Wax like livery for sixty Horses for two nights the Cup wherewith the Arch-Bishop should be served all the empty Hogsheads of Drink and for six Tun of Wine so many as should be drunk under the Bar all which services were accordingly performed by Gilbert de Clare Earl of Gloucester and Hertford at the Inâ—hronization of Robert Winchelsey Arch-Bishop of Canterbury and by the same Earl to Arch-Bishop Reignolds by Hugh Audley afterwards Earl of Gloucester to John Stratford Arch-Bishop of Canterbury by the Earl of Stafford to whom the Lordship of Tunbridge at length came to Simon Sudbury Arch-Bishop of that See and by Edward Duke of Buckingham to William Warham Arch-Bishop of Canterbury and executed the Stewardship in his own person and the Butlership by his Deputy Sr. Thomas Burgher Knight No disparagement to the Knightly family of the Mordants in the County of Essex that they hold the Mannor of Winslowes in Hempsteed in the said County of the Earls of Oxford by the service of a Knights Fee and to be his Champion and to come to the Castle of Hedingbam the day of the Earls mariage riding in compleat harness to Defie or bid Battel to any that should deny him to be Earl of Oxford and to see what order was kept in the Hall there which Robert Mordant Esq performed in his own person the 14 th day of December in the 14 th year of the raign of Queen Eliz. being the day of Edward Earl of Oxford's marriage though it was not there solemnized Or to Sr. Giles Allington the Auncestor of the now Lord Allington to hold his Mannors called Carbonnels and Lymberies in Horsed in the County of Cambridge by the service of a Knights Fee and a half and to attend upon the Earl the day of his marriage and to hold his stirrop when he goeth to horseback which service he performed in person at White-Hall the 14 th day of December in the 14 th year of the raign of Queen Eliz. being the marriage day of the said Edward Earl of Oxford in the presence of the Earls of Bedford Huntington and Leicester the Lord William Howard Lord Chamberlain of the Queens houshold and the Lord Burleigh c. Those Dreams or Fancies of Grievances by Tenures in Capite and Knight Service were never presented in those thousands of Court Leets or Law daies which twice in every year now for almost 600 years since the Conquest and very long before made it a great part of their businesse to enquire upon oath of Grievances Extortions and Oppressions Nor in those yearly grand enquests to the like purpose which have been twice in every year for many hundreds of years past by the oath of the most sufficient Knights Gentlemen and Free-holders of the County of Middlesex It neither was nor is nor can by any reasonable intendment be taken to be a grieveance to do or perform that which by the Laws of God Nature and Nations the Laws reasonable Customs and the fundamental Laws of England hath so often and through all times and ages and the memory of man and Records which are monumenta veritatis vetustatis ever been allowed repeated and confirmed in Parliament without the least of any contradiction or repeal and is but upon necessity and occasion to defend the King themselves their Country Friends and Neighbours and to do that which every Gentleman and such as are e meliori Luto of the more refined Clay and better born bred than the vulgus or common sort of people would be willing to do as that learned French Lawyer Bâ—issonius well observeth Qu' en la necessite de guerre toutes lâ—s gentilz hommes sont tenus de prendre les Aâ—mes pâ—ur la necessite du Roy That in necessity of War every Gentleman is bound to take Arms and go to the Wars for the defence of the King which by our Laws of England is so to be encouraged as it is Treason to kill any man that goeth to aid the King in his Wars and is no more than what the Oaths of Allegiance and Supremacy doth bind every Englishman unto though they should tarry in the Camp more than forty days or not have Escuage or any allowance of their charges from their own Tenants and is but that duty which Deborah and Baruch believed that every Subject was bound to perform when they cursed Meroz not as some of our Pulpit Incendiaries did when they traiterously inverted the Text to encourage the people to fight against their King in that they came not forth to battel to help the Lord against the mighty and the loyal Uriah would not forget when the King himself could not perswade him to go into his own House to eat and to drink and lye with his Wife when the Ark and Judah and Israel abide in Tents and his Lord Joab and the Servants of his Lord were incamped in the open field and which the good old Barzillai in the rebellion of Absolom against his King and Father David thought was incumbent upon him when he could not bring his loyal mind to think it to be enough to provide the King of sustenance while he lay at Mahanami unlesse when he himself was fourscore years old and could not taste what he eat or drank he also should come down from Rogelim and go as he did with his Son Chimham over Jordan with the King to conduct him and would not accept of the Kings offer or reward to live with him at Jerusalem which those that hold in England their Lands and goodly Revenues by those beneficial Tenures in Capite of a free guift and in perpetuity may be said to do and have more also then was offered Barzillai for the remainder of an old and worn-out life but sayes why should the King recompence it with such a reward And is but the performance of the original contracts made betwixt the kind Donors and the thankful Tenants and the observing of faith and promises which is the ingens vinculum and next unto the Divine Providence the grand support of the world
and the quiet repose and peace of all mankind makes a certainty in all their actions and leads to the Mountain of Holinesse and the Hill of eternal rest and blessednesse No grinding of the face of the poor which if it were any as it can never be evinced to be could not commonly or ordinarily be in the case of such Tenures when as those which are any way concerned in it are men of good Estates and Revenues and would be loth to be under any other notion to pay a reasonabe Escuage assessed in Parliament when they went not themselves or sent any in their stead and where their Tenants went not in person to defend their Lords as well as their King to have as much assessed upon them and by no other than a Parliament wherein the Commons of England had their Representatives of their own Election Neither were the Kings of England or the Mesne Lords in the case of those Tenures any Egiptian Task-Masters when those that held under them had such benefits and bounties of free guift and if they have been since transferred and aliened that part of it viz. the Tenures and a gratefull acknowledgement of the favour of the first givers were neither sold or paid for in the purchase but the Services were by Act and operation of Law and the Statute of Quia emptores terrarum reserved to the first Donors by an expresse Covenant in the deeds of purchase to be performed to the Lords of whom they were holden and it is a maxime in Law Quod nemo plus juris in alium transferre potest quam in ipso est that no man can grant or transferre a greater right than he hath or is in him And are if a right consideration of things shall not be as it hath been too much in the times of our late Frenzies and Distractions adjudged a premunire or committing high Treason More noble Tenures than that of Soccage by how much a rustick and Plowmans life and demeanor was ever in all ages and amongst all Nations which had any civility and understanding justly accompted to be so far inferior to the Equestris ordo Gentlemen or men of more noble imployments As that those and not the military Tenures were truly accompted to be a kind of Slavery according as they were in their original Institution before the favour obtained of the King and Mesne Lords to reduce their drudgeries to easy and small quit Rents and to be but litle better than Joshuas Gibeonites Hewers of Wood and Drawers of Water or Solomons Perezites and Jebusites to be imployed as his Servants and Work-men And as now they are or expect to be in that which they would imagine to be their better condition holding in free and common Soccage by fealty only for all services and being not to be excused from Aydes to make the Kings eldest Son a Knight or for the marriage of his Daughter or to pay a years value of their Lands and sometimes double the rent which is to be payed at the death of every Tenant and may amount to a great deal more than the ordinary low and favourable rate of five pounds for a releif for every Knights Fee 50 shillings for a half and 25 shillings for a quarter of a Knights Fee and lesser according to the smaller proportions of the Lands which they hold would in all likelyhood if they might but enjoy the antient and long agoe discontinued priveledge which the Tenures by Knight service in Capite were to enjoy by the Charter or Magna Charta of King H. 1. of not having Lands of that kind of Tenure which was in their own Demeasne charged with any other Assessements or services than what they were obliged unto by their Tenures And was no more than what was before the common Justice and right Reason of this nation be now very well content to exchange their free as they call it Socage Lands which was antiently understood to be no other than feudum ignobile et plebeium an ignoble and plebeian Fee or Estate and as Sr. Henry Spelman saith nobili opponitur et ignobilibus et rusticis competit nullo feudali privilegio ornatum et feudi nomen sub recenti seculo perperam et abusu rerum auspicatum est is opposed or contra distinguished to the more noble Tenures and being not entituled to any feudal priviledge belongs only to Ignoble and Rusticks and hath of late times improperly and by abuse gained the name of Fee for Lands holden in Capite and by Knight service So as they might be free from all assessements and charges of War under which burden the Owners of Lands holden by any kind of Tenures have for these last Twenty years heavily groaned and if Mr. Prynne had not publiquely and truly said it did muâ—â—is parasangis by many and very many degrees out goe all that was pretended to be a Grievance by the Court of Wards and Tenures in Capite and by Knight service which all things rightly considered are a more free beneficial franck and noble kind of Tenure the Mariages of the Heirs in Minority only excepted which not often happening are notwithstanding abundantly recompenced by the freenesse of the gift seldom Services and other Immunityes Then Socage which those many Tenants which hold by a certain rent of Sir Anthony Weldens Heir for Castle-Guard to the ruined Rochester Castle in Kent to pay 3 s. 4 d. nomine paenae by way of Penalty for every Tide which after the Time limited for payment shall run under Rochester Bridge and the Rent and Arrears refused though tendred the next day do not find to be the best of Tenures or so good as that of Knight Service in Capite Which is better than that which the Tenants in Cumberland and other Northern Partes do claim by a kind of inheritance and Tenant Right wherein they can be well contented to pay their Lord a thirty peny â—ine at every Alienation and a twenty peny upon the Death of an Ancestor or the death of their Lord according to the Rate of the small yearly Rent which they pay to their Lords Better then all or most kind of Estates or Tenures and better than that at will which many are well apaied with and better than those of Copyholders who if the Lords of Manours put them out of their Estates have no Remedy but by Petition to them Can have no Writ of Right-Close to command their Lords to do them Right without Delay according to the Custom of the Manour No Writ of false Judgement at the Common Law upon Judgments given in the Lords Court but to sue to the Lord by Petition nor can sue any Writ of Monstraverunt to command their Lords not to require of them other Customs or Services than they ought to do Are to pay upon their admission an uncertain Fine at the will of the Lord who if they be unreasonable the most they can be compelled unto by
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
prove to be of evil consequence if any of our new Socage men should like the Snakes thinking themselves the younger by casting off their Skins fancy in their old or the next factious humour they shall meet with that they are only to pay their rent and doe the services belonging to their Lands but are not bound to pay that principal part of their natural as well as sworn Allegiance to take Armes to defend the King and the Kingdome more especially when they shall hold their Lands in libero et communi Socagio et pro omnibus servitiis per fidelitatem tantum in free and common Socage by fealty for all services which may be more than a litle prejudicial to the Kingdome and the salus populi safety of the people so much fought for as was pretended to exchange the men of Armes and such as are fit for war as the Tenures in Capite doe truly and not feignedly import for those that shall claim exemption from wars and are by all nations understood to be the unfittest for it when those that by Tenure of their Lands and by reason of their Homage and Fealty were alwayes ready and bound to doe it and those that by a fealty not actually or but seldome taken will suppose themselves not to be bound at all unto it but being most disloyal will as some thousands of Phanatiques have lately done imagine themselves to be most faithful and where the Knight Service men were to forfeit their Lands so holden if they did not doe their service within two years or pay Escuage assessed by Parliament if they went not when they were summoned or sent another in their stead the new or old Socage men shall be under no manner of penalty of forfeiture at all Which may seem to be the cause that England and all other Civilized and well constituted Nations Kingdoms did put that value upon Homage of which there is some likeness of Fealty also in that of the Princes mighty men of Israel and all the Sons likewise of King David submitting themselvs at his command unto Solomon giving the hand under Solomon as the margent renders like that Oath of Abrahams Steward as they understood it to be of the Essence of Soveraignty the great Assistant and preserver of it and the Bond of Obedience fixed and radicated in the interest of mens Estates kept in and guarded by their fear of loosing them And made our Kings so highly prize the Homages of their Subjects and conceive them to be the Liaisons or fastenings that kept their Crowns fast upon their heads as King H. 2. when he had unadvisedly made his Son Henry King in his life time caused the English Nobility to do Homage unto him and R. 1. returning out of Captivity had found that his Brother Iohn had almost stollen into his Throne caused himself to be Crowned the second time and took the Homages of his Nobility and our Kings have been heretofore so careful as alwayes at their Coronation to take the Homages of their Nobility and after a vacancy of a Bishoprick not to restore the Temporalties until the succeeding Bishop shall have done his Homage And appears to be no lesse valued by Foreign Princes when as Phillip King of France would and did to his cost refuse to receive the Homage of our King E. 3. by proxie but compelled him to do it in his own person for the Dutchy of Aquitain and an Arch-Duke of Austria was constrained in person to do his Homage to the King of France between the hands of his Chancellor for Flan-Flanders and the now Emperor of Germany hath lately and most industriously travailed through many of his Dominions and Kingdoms to receive the personal Homages of the Princes and Nobility thereof and not omitted to go to Gratz and Carinthia to have it as formally as really done unto him And was such a Jewel in their Crowns as they could sometimes to pacifie the greatest of their troubles by the Seditions and Rebellions of their Subjects find no greater or fitter a pawn or security to assure the performance of their promises and agreements than an absolving their Subjects from their Homage and Obedience which were as Synonimes or of one and the same signification in case of Breach of promises as our King Henry the 3 d. did in his necessities to Richard Marshal Earl of Pembroke that he should be freed from his Homage Si rex pactum suum violaret if the King should break his agreement and as the Antient Earls of Brabant are said to have done in their Reversals or Grants to their Subjects if they should infringe their Liberties or Privileges Which the seditious party that deposed King Richard the 2 d. knew so well to be a grand Obligation or Tye which Kings had upon their Subjects as they put themselves to the trouble of inventing a new trick of Treason solemnly in the name of the three Estates of the Kingdom viz. Lords Spiritual and Temporal and the Commons to renounce their Homages Fealties and Allegiance and all Bonds Charges and Services belonging thereunto which would have been to as little purpose as it was contradictory to all the Rules of Right Reason and Justice if they had not forced the distressed imprisoned King by a publick instrument upon Oath to absolve all his Subjects a Juramento fidelitatis homagiis omnique vinculo ligeanciae from their Oaths of Fealty and Homage and all Bonds of Allegiances and to swear and promise never to revoke it and is so precious inestimable of so high a nature so useful and of so great a value as nothing but the Kingdom it self can be equivalent unto it And our Nobility did so esteem of the Homage and Service of their Tenants and build as is were their Grandeur and Power upon it as they did antiently grant one to another Homagium Servicium of such and such Tenants Maud the Empresse gave to Earl Alberick de vere servicium decem militum the Service of ten Knights An Earl of Leicester gave to Bygod Earl of Norfolk ten Knights Fees which after the manner of those times may with reason enough be conceived to be only the Homage and Service of so many for the purchase of the Office of Lord high Steward of England and John Earl of Oxford in the Reign of H. 7. did at his Castle of Hedingham in Essex actually receive the Homages of many worthy Knights and Gentlemen that held of him May very much prejudice in their Dignities and Honors as well as Estates the antient Earls and Barons of this Kingâ—om by taking away Tenures in capite changeing them and Knight service Tenures into Socage when as the Earls of Arundel do hold the Castle and Rape of Arundel which is the Honor and Earldom it self by the Service of 84. Knights Fees the Earldom of Oxford is holden by the Service of 30 Knights Fees and that by a modus
Seisins and Liveries and all other incidents belonging to the Tenures in Capite and by Knight Service be reserved and continued to the King and Mesne Lords and the Mariages of the Wards be put to a just apportionment and rate not to boxing or bidding with every pretender or such as shall be procured on purpose and was thought by the Sons of Rapine to be a parcel of godliness according to two years present value of the Estate and a moderate Rate or Rent for the Lands And if that they do not like to sue or be sued in that Court may do it either in the Exchequer or Chancery and try which of those Courts they shall like the better There being no Reason to be shown why Wardships Rents and Marriage Money should not be paid as quietly or without the Noise or Clamour of Oppressioon by some orderly Course to be taken in the collecting of it as the first Fruits of Arch-bishoppricks Bishoppricks and all the Clergyes Benefices which was at first derived from the Popes Usurpations and afterwards setled in the Crown or as the Tenths of all the Monasteryes and Religious Lands which by Act of Parliament were setled in the Crown for the Support and Maintenance thereof And now all the Lines are come in and meet in one Center we may aske the Days that are past and demand of the Sons of Novelty how it should happen or where the Invisible Cause or Reason lurketh that a People at least too many of them not long agoe covenanting whether his late Majesty would or no to preserve his Honor Rights and Iurisdâ—ctions and calling God to witness that they had no Intention to diminish them should presse or perswade the King to part with the vitals of his Regalitie or let out the blood thereof to take in water instead of it which that learned John Earl of Bristol who in his many Travails and Embassies to forrein Princes had observed the several Strengths Policyes and defects of Governments of all the Kings and Princes of Christendom could think no otherwise of that high and just Prerogative of Kings then that to discharge the Tenures in Capite would be consequently to discharge them of their Service to the Crown When as their can be neither Cause nor Reason to make any such Demands and that all the Lords of Mannors in England who may already find the Inconveniences of making too many small sized Freeholders and I wish the Kingdom may not feel it in the Elections of Parliament men and Knights of the Shire as well as it doth already by the Faction and Ignorance of such as choose Burgesses in Towns and Corporations who many times choose without eyes ears or understanding would not be well content to have the many perplexed and tedious Suits at Law betwixt them and their troublesome Tenants about Customs and Fines incertain which in every year do vex and trouble the Courts in Westminster Hall or that which the late feavorish Fancies of some would call Norman Slaveryes should be either a Cause that they must be forced or over intreated to part with their Copy-hold Estates Herryots Fines for Alienations and all other Incidents thereunto belonging or that it would be a good Bargain to have no Compensation or Recompence at all for them or no more than after the Rate of what might Communibus Annis one year with another be made of them Whenas to have the intended Recompence for the Court of Wards paid as is now proposed by a part of the Excise or Curses of the People or to have the poor bear the burden of the rich or those to bear the Burden of it which are not at all concerned in any such purchase or Alteration and will be an Act which can have no more Justice or Equity in it then that the payment of First-Fruits which is merely Ecclesiastical should be distributed and charged for ever upon the Layety and the other part of the People as well as the Clergy That the Tenths which the Layety and some of the Clergy do now contentedly pay should be communicated and laid upon all the Kingdom in general in a perpetuity That the draining or maintaining the Banks and Sluces and Misfortunes many times of the Fenns in Lincolnshire and other particular Places should be charged upon the Estaâ—es of all the men in England that could not be concerned either in profit losse or Dâ—nger Or that in the enclosing of Commons or in Deafforrestations the Commoners should have their Compensation paid by all men in City Town and Country for that which was not 〈…〉 nor was ever like to be any Gain or Aâ—vaâ—tage to them Or that the losses of Merchants by Shipwâ—acks Pirates or letters of Reprisal should be repaired and born by all the rest of the people that went no partnership or gain with them Or which way the people of England should think it to be for their good or safety that as it was in the dayes of Saul there should not be a Sword or Spear in Israel that the Lords of England whose great Auncestors helped to maintain all our Liberties being in Parliament in the 20 th year of King H. 3. pressed by the Bishops to Enact that Children born before Matrimony when their Parents after married should be legitimate answered Nolumus mutare Leges Angliae we will not change the Lawes of England should not take the overturning so many of the Fundamental Lawes and Liberties of the Kingdome to be the ruine or destruction of it to be of a greater concernment And that the King will not think it to be a most Christian as well as an Heroick answer of John King of France when he was a Prisoner in England to our King E. 3. and was denied his Liberty unless he would amongst other things doe Homage for the Realm of France and acknowledge to hold it of England That he must not speak to him of that which he neither ought nor would doe to Alienate a Right Inalienable that he was resolved at what price soever to leave it to his Children as he had received it from his Auncestors that affliction might well ingage his person but not the inviolable right of the Crown where he had the honour to be born over which neither Prison nor Death had any power and especially in him who should hold his life well employed sacrificing it for the Immortal preservation of France And that the people of England should not rather imitate the wisdome as well as goodness of the Elders of Israel when as Benhadad not content with Ahabs Homage had demanded unreasonable things of him Say unto the King hearken not unto him nor consent But remember that it was their fore-Fathers which in a Parliament of King E. 3. holden in the 42 th year of his raign declared that they could not assent to any thing in Parliament that tended to the disherison of the King and his Crown to which they were sworn
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