find the way to the ears or audience of so many worthy and just Kings and Princes as this Kingdom hath been happy in who would have been as willing to give a remedy as they could have been to seek it if there had been any ground or cause for it that so many Petitions of small concernments or of no greater consequence than for the paving of Streets killing of Crows not taking of young Herns out of their nests without license of the owner of the ground and the like should get admittance and cause Acts of Parliament to be made thereupon and that of Tenures in Capite if any grievance could at all be found in them and of so long a continuance which usually makes light burthens to be heavy should be so dipped in a Lethe or Oblivion as not at all to be remembred Which had nothing at all of grievance in their essence or being understood of them in the making of the Statute of 1 H. 8. against Empson and Dudley by whom the Kings Subjects had been sore hurt troubled and greived in causing untrue Offices to be found retorning of Offices that never were found and in changing Offices that were found No Grievance perceived to be in them in Primo Jacobi when in the Statute concerning Respites of Homage there was a Proviso that in case it shall be thought fit for the true knowledge and preservation of the Tenures appertaining to the Crown and so ordered in the open Court of Exchequer that proces should issue out of the said Court against any came not within the Suspition or Jealousy of a Grievance when in the Parliament of 7. Jacobi Regis Sr. Francis Bacon then his Majesties Sollicitor in his speech as one of the House of Commons in Parliament to the Lords in Parliament perswading them to joyn with the Commons to Petition the King to obtain liberty to treat of a Composition with his Majesty for Wards and Tenures acknowledged in the name of that Parliament that the Tree of Tenures was planted into the Prerogative by the Antient Common Law of England fenced in and preserved by many Statutes and yeildeth to the King the fruit of a great Revenue and that is was a noble Protection that the young Birds of the Nobility and good Families should be gathered and clucked under the Wings of the Crown Nor in Primo Car. primi in the Act of Parliament touching the rating of Officers Fees in the Exchequer upon pleadings of Licences or Pardons for Alienations when the Lords and Commons in that Parliament assembled did declare that the Kings Tenures are a Principal flower of the Crown which being in England the safety and protection of the people cannot be said or proved to be adorned by their sorrows and miseries and ought not to be concealed And that in the petition of Right in 3 Car. primi wherein all the Grievances and Burdens of the Subjects and breaches of Laws and Liberties that any way concerned them or their Posterities were enumerated and remedies for the future establishment of the quiet and happines of the people propounded and granted Tenures in Capite and Knight service with their incidents were not reckoned or accounted as Grievances though all that troubled the people were at that time so largly thought and beleived to be redrest as a publick joy upon the Kings granting of that Petition of Right was commanded to be celebrated by the Musique and ringing of Bells in every Parish Church of the Cities of London and Westminster which vied each with other who should proclaim and tell their joyes the loudest And the blaze of numberless Bonfires representing the flame of the peoples affection towards a most gracious Soveraign seemed to turn the sullen night into a morning or day which the Sun beams had newly guilded whilst Alecto and her Sister Furies despairing in their hopes of kindling a sedition and bringing the miseries of a Civil War upon us had thrown by their Torches and employed their Hellish griefs in the tearing of their Snakie loâ—ks Were no Sirtes or Rocks to shipwrack or hurt the people when Sr. Edward Coke who was so willing to have Tenures in Capite and Knight service to be changed into Tenures by Fealty only as of some of the Kings Honors and all their Incidents as Wardships primer seisin Licences of Alienation c. taken away and recompenced by a greater yearly profit then was then had or received by them and a rent to be inseperably annexed to the Crown with some necessary Covenants and Privisoes as he hoped that so good a motion as had been made in the Parliament of 18 Jacobi tending as he thought to the Honor and Profit of the King and his Crown for ever and the quiet and freedome of his Subjects and their Posterities would one way or other by the grace of God and Authority of Parliament take effect and be established could not but acknowledge between Anno 3. Car. Regis primi and the 12 th year of his raign that the Objection that Wardship was a Badge of servitude which would be a Grievance indeed and of the greatest Magnitude was groundless and without a Foundation for that the King by taking money for the marriage of the Ward doth it not as for a Ransome but taketh such moderate sums of money as in respect of the quality and state of the Ward He or She all circumstances considered is able to pay and in regard thereof hath the protection of the Court of Wards during Minority And giving Tenures by Knight service no worse a Character than the Wisdome of Antiquity for his Iustification therein citeth a place out of the Red Book in the Exchequer where it is said that mavult enim princeps domesticos quam Stipendiarios Bellicis apponere casibus the King had rather be served by his own Subjects than Hirelings or Stipendary Souldiers No Scylla or Charybdis taken to be in them in the Parl. of 17. Car. prim at the making of the Act for the better raising and levying of Souldiers for the present defence of the Kingdomes of England and Ireland wherein it being said that by the Laws of this Realm none of his Majesties Subjects ought to be impressed or compelled to goe out of his Country to serve as a Souldier in the Wars they excepted cases of necessity of the sodain coming in of strange enemies into the Kingdome or where they be otherwise bound by the Tenure of their Lands or Possessions In the Remonstrance of the House of Commons 15. December 1641. and that unhappy Amasse and collection of Complaints against the Government the Tenures themselves were not so much as complained of but the exceeding of the Jurisdiction of the Court of Wards that thereby the estates of many Families were weakned some ruined by excessive Fines for Composition for Wardships exacted from them which if in some few particulars where the Estate it self was weak or incumbred with
Tenenda non Tollenda OR The Necessity of Preserving TENURES IN CAPITE and by KNIGHT-SERVICE VVhich according to their first Institution were and are yet a great part of the Salus Populi and the Safety and Defence of the King as well as of his People TOGETHER With a Prospect of the very many Mischiefs and Inconveniences which by the taking away or altering of those Tenures will inevitably happen to the KING and his KINGDOMES By Fabian Philipps Esq Claudian Lib. 2. Ne pereat tam priscus Honos qui portus honorum Semper erat nullo Sarciri Consule Damnum LONDON Printed by Thomas Leach for the Author and are to be sold by Abel Roper at the Sign of the Sun in Fleetstreet 1660. To the Right Honourable Sir Edward Hide Knight Baron of Hindon and Lord Chancellor of England My Lord EVery man who hath not been out of his Wits or his own Country or like the Poet Epimenides who is said to have slept more than Twenty years And hath but understood or experimented the many Miseryes and Confusions which our new Reformers and Modellers of Government who like unskilful Architects cannot amend a part of an house without overturning the whole Fabrick upon the heads of the Owners have treated the Faction and Ignorance of too many of the seduced people of this Kingdom withal And sitting by the Waters of Babylon had not forgot Jerusalem or but remembred the happinesse of the Condition we before enjoyed under a gratious and pious Prince in an Antient and for many ages past most happy Monarchy and with Tears of Joy welcommed it again in the Return of his sacred Majesty and all our peace and plenty from a sad and long oppressing Captivity must needs think himself obliged not only to pray for the Peace of our Syon but to endeavour all he can to uphold the Kings Rights and Jurisdictions Who being our Lex viva and guarding Himself us and our Laws is with them the sure support of us and all that is or can be of any Concernment to us and our Posterityes And therefore when we are taught by our Laws and the sage Interpreters and Expounders thereof That every Subject hath an Interest in the King as the Head of the Weâ—le Publick and as the inferior Members cannot estrange them selves from the Actions or Passions of the head no lesse can any Subject make himself a Stranger to any thing which toucheth the King or their supreme Head And that not a few but very many knowing and able men are of opinion not ushered in by Fancy or first Notions but well weighed and built with Reason and good Authorities that the exchanging of the Tenures in Capite and by Knight Service for a constant yearly payment of 100000 l. will level the Regality and turn the Soveraignty into a dangerous popularity and take away or blunt the Edge of the Sword by which his Majesty is to defend his people I could not but conceive it to be my Duty and a failer of my Duty and Oaths of Allegiance and Supremacy not to do it to offer to consideration the antiquity and right use of Tenures in this and other Kingdoms that they are no Slavery nor Grievance how from a project in the beginning of the Raign of King James it came to trouble several Parliaments the small benefits will come to the Subjects by altering those Tenures and the many Inconveniences and Mischiefs which will inevitably follow and that it is such a flower of the Crown as the power of an Act of Parliament and consent of the King and his Nobility and people cannot take away wherein though I may well say it is a matter as Livy said of his undertaking to write the Roman History Immensi Operis and that the disquisition of it requiring greater Abilities than I can lay any claim unto and the excellent Order heretofore used that all Books of the Law or very much concerning it should be perused and allowed by the Reverend Judges of the Law before they should be Printed and published might have been enough to have made me either to desist or have attended their approbation Yet when the good intentions of many Parliament men of the House of Commons to make the King a constant Revenue were so busy to prepare an Act of Parliament to dissolve those more useful and honourable Tenures into a Socage which will never arrive to the Salus Populi they aim at I have like some well-wishing Roman to his Countries good in my Cares and fear least any thing should hurt dislocate or disturb that well ordered and constituted Government under which our Progenitors enjoyed so much Honor Peace und Plenty hasted Currente Calamo to a modest inquiry into the grounds and motives for the dissolution of them and the Court of Wards and an examination of that to be prepared Act in the General for as to the Preamble Clâ—uses or Provisoes they are not permitted to be seen before the Act passeth the Rogatio Legum as it was amongst the Romans being not here in use in some cases as it may be wished it were and when none else would publiquely endeavour to rescue them have without any Byasse or partiality as well as I could represented what hath been the right use of them and what may be the Inconveniences if they should be changed or altered and that they are not guilty of the charge which is supposed but never will be proved against them And confesse that it deserved a better Advocate than my self who having attempted to do it horis Succâ—sâ—vis interturbationes rerum am Conscious to my self that much more might have been said for it and that the matter was capable of a better form and might have appeared in a better dresse if my care to do something as fast as I could had not for want of time hindred me from doing what I might But I hope that your Lordship who hath trod the Pathes of Affliction and in the attendance and care of a persecuted Monarchy and an Afflicted most Gracious Prince who hath born the burthen of His own Sorrows Troubles as well as of a Loyal party that Suffered wiâ—h for Him and His Royal Father have in Your Travails and residence in many Kingdoms and parts beyond the Seas viewed and seen the Fundamentals and Order of other Kingdoms the Policies and good Reiglements of some and the Errors and Infirmities of others will with your learned Predecessor the Chancellor Fortescue in the Raign of King Henry the 6â—h the more admire and love the Laws and excellent Constitutions of England which as a Quintessence of right reason may seem to have been Limbecked and drawn out of the best of Laws and choice of all which might be learned out of other Nations or the Records or Treasury of Time and find reason enough to be of the opinion of that well knowing Statesman that non minime erit regno accommodum ut Incolae
part of the well being of the Nation not at once but at several times in several ages and several Generations support and uphold them by after Laws constitutions as That no Freeman should from thence give nor sell any more of his lands but so that of the residue of the lands the Lord of the fee may have the services due unto him which belongeth to the Fee Lands aliened in mortmaine shall accrew to the Lord of the Fee 9 H. 3. ca. 32. 36. the Ward shall pay to the Lord of the Fee the value of his marriage if he will not marry at the request of his Lord for the marriage of him that is within age say the Statute the makers thereof of meer right pertaineth to the Lord of the Fee 20. H. 3 cap. 7. The Lord shall not pay a Fine for distraining his Tenant for Services and â—ustomes 52. H. 3 cap. 3. A fraudulent conveyance to defeat the Lord of his ward shall be void cap. 6. The King shall have primer seisin neither the heir nor any other shall intrude into their Inheritance before he hath received it out of the Kings hands as the same Inheritance was wont to be taken out of his hands and his Ancestors in times past if the lands be accustomed to be in the Kings hands by Knight service or Serjeanty or right of Patronage 52. H. 3. cap. 16. If an heir marry within age without the consent of his Guardian before he be past the age of fourteen years it shall be done according as is contained in the statute of Merton and of them that marry after that age without the consent of their Guardian the Guardian shall have the double value of their marriage such as have withdrawn their marriage shall pay the full value to the Guardian for the trespass and nevertheless the King shall have like amends And if the wards of malice or by evil council will not be married by their chief Lords where they shall not be disparaged then the Lords may hold their lands and Inheritance until they have accomplished the age of an heir male that is to wit of twenty one years and further until they have taken the value of the marriage 3 E. 1.22 A Tenaent shall have a writ of mesne to acquit him of his services and if the mesne come not he shall loose the service of his Tenant 13 E. 1.9 Priority of Feoffment shall make a title for wardship cap. 16. the chief Lord shall have a Cessavit against the Tenant if he cease for two years to do his service writs of Ravishment degard allowed to the Lord and the Party offending though he restore the ward unmarried or pay for the marriage shall nevertheless be punished by two years Imprisonment 13 E. 1.35 The Feoffee shall hold his lands of the chief Lord and not of the Feoffor 18 E. 1. Quia emptores terrarum A saving to the King of the antient aydes due and accustomed 25. E. 1.6 The King shall have the wardship of his Tenant which holdeth in chief the marriage of the heir primer seisin assignement of dower to the widdow marriage of the women Tenants deviding their lands in Coparcinery holden of him and they which hold of him in Serjeanty shall pay a Fine at the Alienation 17. E. 2. A Free-man shall doe his homage to his Lord 17. E. 2. Knights Fees shall not pass in the Kings grants without special words 17 E. 2.16 he shall be answered the mesne rates of Lands coming to him by his Tenants death 28. E. 3.4 where sundry of the Kings Tenants holding of him immediately as of his Dutchy of Lancaster did by sundry Recoveries Fines and Feoffments in use defeat the King of Wardships of Body and Lands It was Enacted that the King and his Heirs shall have the Wardship and Custody of the Body and Lands of cestui que use and if they be of full age shall have relief notwithstanding any such conveyance and an exact provision made for Writs to be granted upon the imbesiling of any such Heir Rot. Parl. 22 E. 4. N. 16. 17. The Lord of Cestui que use no will being declared c. shall have a Writ of Right of Ward for the Body and Land and the Heir of Cestuique use being of full Age at the Death of his Auncestor shall pay a relief 4 H. 7.17 Avâ—wry may be made by the Lord upon the land holden of him without naming his Tenant 21 H. 8.19 And no grievance was thought be in them at the time of the making of the Act of Parliament of 27 H. 8 2. when as it was expresly provided by that Act that Tenures in Capite should be reserved to the King of all mannors lands and hereditaments belonging to Monasteries religious houses which had lands Tenements and hereditaments not exceeding the clear yearly value of two hundred pounds which he should afterwards grant for an estate of Inheritance nor did the Parliament in the 31 year of the raign of that King retract that good opinion which was formerly had of them when enacting that the King and his heirs and Successors should be put in actual possession of all mannors lands and hereditaments of any yearly value whatsoever belonging to Monasteries they saved to the King his heirs and Successors all rents services and other duties as if that act had never been made Nor in the Act of Parliament of 32 H. 8. cap. 46. For erection of the Court of wards and Liveries wherin it is acknowledged that Tenures in Capite and wardships with their incidents did of right belong to the King in the right of the Imperial Crown of this Realm In the Act of Parliament of 32. H. 8. And an explanation thereof in 34 and 35 H. 8.5 giving power to those that held lands in Capite and by Knights service to devise two parts thereof reserving to the King wardship primer seisin and Fines for alienation of the third part and Fines for alienations of the Freehold or Inheritance of the two parts The Crown being secured of the Tenure of the two parts by the statute of Quia emptores terrarum Nor at the making of the statutes of 35 H. 8.14 37 H. 8.2 Whereby the King might reserve Tenures in Socage or Capite at his will and pleasure upon grants of lands not exceeding the value of forty shillings per annum belonging to religious houses And that the Kings former right shall be saved notwithstanding any Traverse a remedy for the rents of the mesne Lords where the King hath the wardships 2 and 3 E. 6. cap. 8 And those that held by such Tenures besides the care of so many Acts of Parliament were not unhappy also in that provision of the Common Law where it was an Article or inquiry in the Eyre if any Lord novas levavit consuetudines had charged his Tenant with any new Customes if any Escheators or Subescheators had made any
War shall burn And the Ignoble to the worst side turn Must be left to hire his Souldiers or Assistance out of the Rascallity Debauched and Ruder sort of People and such as know neither how to fight or be faithful if his Treasory or yearly Income upon such an increased Revenue can do it when as without the necessity of his Subjects preserving their own Lands and Estates by performing the duties and service of their Tenures the money which the late King could have procured could never have brought any considerable number of men to his Standard of whose fidelity being Hirelings and such of the Vulgar and ignoble part of the people as had neither courage virtue or Estate or such as for a litle more pay would either have deserted or betrayed him nor could he be so certain and assured as he was in the aid and assistance of that of the Nobility and Gentry and better part of the people virtuously educated and descended from worthy Ancestors furnished out and ready to attend him with the hazâ—râ— of all their Estaâ—â—s and Foâ—â—uâ—es and whose great Souâ—s â—ctâ—d by a nobler principle made them scorn to stoop to any unworthy Actions basenâ—sse or villany which caused our brave King H. 5. after the Batteâ— at Agencourt in a Muster or Leavy which he was to make of Souldiers to passe with him into France publiquely to Proclaim that none should presume to go with him for then they needed no other impressing but the obligation of their Tenures and glory and honour of serving their Prince and Country but such as were Gentlemen and had Tunicas armoâ—um did bear Arms except such as had served him at the Battel of Agencourt though they had none For if a War which will be sure to loose no opportunities but pick cull its advantages should break out before the rent day or the monyes can be gathered he cannot likely want distresses or misfortunes either for himself or his people when they shall not have wherewith to hire an Army And failing of a necessary defence and assistance at Land for want of his Tenures in Capite and Knight service shall also loose the help of his Ships and Navy at Sea And if the King or any of his Successors should be so happy as to have money in their Treasury which as the course and charge of War is now must be no small sums to hire provide and continue an Army it may be seized on as his Revenues and all the money in the Exchequer and much of his Plate and Houshold stuffe were in the late Wars and if he could be so well before hand as to have any Magazines may have that as easily taken from him as his Magazines at Hull and the Tower of London were when his Tenures per Baroniam and in Capite and by Knight service were not Can have no manner of assurance that when any sedition or commotion of the people shall be bred or increased by the practise of some great men or inticements of any of the Clergy and a Bellum flagrans or a War as suddain and unexpected as it shall be dangerous shall breake out not only in one but several parts of the Nation that the people or most vulgar and common sort of Hirelings will especially in a frenzy or humour of sedition be hired or drawn to fight for him by a small and inconsiderable pay and the support of an Hospital when their wounds shall bring them into it or a small allowance which the statute allows wounded Souldiers until they be cured or maimed Souldiers which are incurable shall be so very disproportionate to their danger and hazards When the hireing also of common Souldiers upon a suddain and in case of necessity will if he could get them be more chargeable and difficult then when he was to be served and defended in his Wars by men of worth and quality under the ingagement of their Lands and Tenures which made our former Kings besides those aids and safeguards by Tenures of Lands to stipend and pension certain of their Nobility and Gentry whom they found most proper and fit to serve them by Indenture with so many men at Armes or Souldiers as for instance Thomas Beauchamp Earl of Warwick retained in 46 E. 3. by Indenture to serve the King in his Wars beyond Seas for one whole year with 100 men at Arms of which number himself to be one 160 Archers 2 Bannerets 30 Knights and 77 Esquires a tryal or proof whereof would easily have manifested the difference betwixt the one way the other if when the late King in his march or expedition against the Covenanting Scots in An. 1639. had such a gallant Army as he had of his English Nobility Gentry had disbanded them taken as well as he could in their rooms only milites Gregarij or Tirones common and mercenary Souldiers And may expose him in any distresse when his mony or hirelings shall fail him to that disloyal and rebellious late opinion too much entertained and taken in by Newtrals double dealing or time serving people that where the King cannot protect them their Oaths and Consciences gives them a liberty to make the best bergain they can for themselves Take away also the foundation of the House of Peers in Parliament whom the Laws and Records of the Kingdom do prove to sit there only as Tenants in Capite and per Baroniam which well might be the grand foundation of so noble a Senate when as amongst the Romans their Senators were Lecti in senatum ex equestri ordine chosen into the Senate out of the degree of Knighthood and even by Brutus in his Consulship and great endeavours to restore that people to their Liberty was so approved as that many ages after Perseus Macedoniae Rex apud Livium lib 42. Equites Romanos appellat principes juventutis seminarium Senatus calleth in Livy the Roman Knights the Princes or Flower of the youth and the Nursery of the Senate and saith that inde lectos in patrum numerum they where thence chosen to be Senators and ex veteri instituto the Custom was as Isiodore saith that when the Senators Sons came to be of Age they were not to be admitted into the Senate until they were Knighted And Alexander Severus the Emperor would not assumere libertos in equestrem ordinem ordain or make Yeomen or such as were nâ—wly 〈◊〉 to be Knights or give 〈◊〉 as he did Lands to hold by Knight 〈◊〉 dicens quod seminarium 〈◊〉 Equestrem â—sse locum that it was the seminary for the Senate amongst the Germans who were as jealous to keep their Honor as they were their Liberties Nobiles vocati Ritter id est Servator Noblemen were termed Ritters which signifieth a Saviour or Defender quod virtute fortitudine servent patriam because by their vertue and manhood they defended their Country amongst whom the degree of Knighthood is
Coppy-holder of that Mannor and those Patent Lords doe by their Patents hold their Honor and Dignities in Capite though it be not expressed in their Paâ—ents and should pay as great a Releif as the other Earls and Barons doe by Tenure for no man can sit there but as a Tenant in Capite and acknowledging his Soveraign unless a Coordination should be supposed and that dangerous Doctrine again incouraged nor can these by Creation sit if the House should be dissolved by the change of the others Tenures for that they were but Adjuncts and Associates of them Which was so well understood by Sir Edw. Coke to be a shaking if not an over-turning of the foundation of that high and most honourable Court or Judicatorie as in the Parliament of the 18 â—h year of King James in the proposition which was then on foot to change the Tenures in Capite and by Knight service into free and common Socage he and some of the old Parliament men advised a Proviso to be inserted in that intended Act of Parliament that the Bishops notwithstanding that their Baronies should be holden in Socage should continue Lords of Parliament and in our late times in that great inundation of mistaken Liberty when the outrage of the vulgar and common people greedily pursued the dictates of their ignorance and fancie and that after the House of Lords had been shut up and voted to be uselesse and dangerous the persons of the Barons of England which the Law and the reasonable and antient as well as modern Customes of England did never allow to be arrested were arrested and haled to Prison In the seeking a remedy wherof some of the Baronage pleading their Priviledge it was in Easter Term 1650. in the Kings or upper Bench in the argument of the Countess of Rivers Case argued and urged that all Tenures as well as the House of Lords were taken away so that the Court holding that the Priviledge was not allowable for that she never had reference to the Parliament or to do any publique service the Cause was adjourned Wherefore seeing that the custom of a Court is the Law of a Court and the interrupton of a Custom Prescription or Franchise very dangerous and Cessante causa tollitur effectus the cause or foundation taken away the effect or building faileth that a Lord of a Mannor is not able to create a Mannor or make a Lease-holder or Tenant of one Mannor to enjoy the same priviledges which he did formerly be incorporate a Tenant in another Mannor a House with a Common Appendent or which was before belonging unto it once pulled down though built up again looseth its Common and Prescription or if a Coppy-hold estate come to the Lord by Forfeiture Escheat or otherwise if he make a Lease or otherwise it is no more grantable by Copy of Court Roll or make a Feoffment upon condition and after enter for the Condition broken it shall not be regranted by Copy And if a man hath libertyes by Prescription take letters Patents of them the matter of the Record drowns or takes away the prescription as was held in 33 H. 8. tit precription Br. 102. c. Or if as in the Acts of Parliament for the dissolution of the Monasteries the King shall be before the Tenures be ordained to be in free and common Soccage made or derived to be in the actual Seâ—sin and Possession of all the Lands There will be cause and reason enough to make a stand or a pause and inquire further into it For if the subversion of Tenures in Capite and by Knight Service will not totally or at once ruine and dissolve the House of Peers in Parliament or put upon it a new constitution it will not be good certainly to leave that House and most high and Honourable Court and all its just Rights and Privileges which hath already so much suffered by the Assaults and Batteries of Faction and vulgar Frenzies to an after question of moote point whether or no it be not dissolved or put upon a new Foundation And must needs be very dangerous when as one of the three Estates under the King which is Supream and not Coordinate viz. the Bishops and Lords Spiritual being lopt off the second which is the Lords Temporal shall be but either suspected or doubted to have a being and the third which is the House of Commons shall upâ—â— the next advantage or distemper of that paâ—â—y which lately gained so much by â— supposing it to be the Soveraign bâ—â—ancied â—o be above both it and the King who as the head is above them both and too much gratifie that late illegal and unwaâ—rentable opinion and practice of the Soveraignty of the House of Commons in Parliament or that they alone are the Parliament of England Destroy the hopes and rights of the Bishops being the third Estate in Parliament of ever being restored or admitted again into it from which after a force and a protestaâ—ion solemnly made against it twelve of them imprisoned for making of it they were by an Act of Parliament in an 17. Car. Regis primi prohibiting them as well as all other Clergy men to intermeddle in any temporal affairs or proceedings excluded the House had all their Estates afterwards by an Ordinance of the Lords and Commons without being cited or heard and without the Kings consent and after his going from the Parliament and in the midst of a War and Hostilities betwixt them confiscated and taken from them by the taking away of Tenures per Baroniam being the only cause and reason of their sitting there and constituting them a third Estate will now after his Majesties happy restoration when the waves and rage of the people are so calmed and ceased as the Halcyon is preparing to build her nest be more then ever made to be altogether impossible Hinder and restrain our Princes from recovery of Foreign Rights a necessary inlarging their Dominions making an offensive War or pursuing a flying or like to be recruited Enemy which in keeping a Kingdom in peace and plenty or maintaining the Commerce thereof will be according to the rules of policy and good Government as necessary as that of Davids revenging upon the Ammonites the affronts done to his Embassadors the Wars of our Edward the third or H. 5. in France of the great Gustavus King of Sweden in Germany or the now King of Denmarks and Marquesse of Brandenburghes Wars upon Charles late King of Sweden And when any of those occasions or necessities shall offer themselves or inforce a forinsecum serviciuâ— or service in foreign wars shall have none but Auxiliaries Hirelings to go along with them when as several Acts of Parliament do prohibit the enforcing Hoblers which were a kind of light horsemen Archers Trained Bands and common Souldiers to go out of their Countries unlesse it be in cases of necessity which the common people know not
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
Debts or charge of Children connot rationally conclude or argue the Fines to be excessive no more than a common weight or burden which may easily be born or carried by any man in health doth make it to be of a greater weight or burden because another man by reason of sicknesse or other disabilities is not able to bear or stand under it or that a reasonable or small rent which Tenants are to pay to their Landlords is therefore too much or unreasonable because a poor or decayed Tenant cannot so well bear or pay it as he was wont or as one that is thriving or before hand might doe That all Leases of above One hundred years were made to draw Wardships contrary to Law when as such or the like Collusions were by the Statute of Marlebridge prohibited and the Parliament was mis-informed for long Leases under 500. years were not made by that Court lyable to Wardships and that undue proceedings were used in the finding of Offices to make Jurors find for the King which was but to adjorne or bind them over to the Bar of the Court of Wards in case that there was any doubt of the Law or Evidence Or when the Lords and Commons in Parliament the second day of June 1642. by the nineteen Propositions which were as they alleaged for the establishment of the Kings honour and safety and the wâ—lfare and â—ecurity of his Subjects and Dominions and being granted would be a necessary and effectual means to remove those jealousies and differences which have unhappily fallen betwixt him and his people and procure both his Majesty and them a constant course of honour peace and happiness Did propose petition and advise that the Lord high Constable of England Lord Chancellor or Lord Keeper of the great Seal of England Lord Treasurer Lord privy Seal Earl Marshal Lord Admiral Warden of the Cinque Ports cheif Governour of Ireland Chancellor of the Exchequer Master of the Wards Secretaries of State two cheif Justices and cheif Baron may alwayes which shewed they had no desire for the present or the future to take away the Tenures in Capite and by Knight service be chosen by approbation of both Houses of Parliament Did not conceive them to be any Disease or Gangreen in the Body Politique at the making of the 2 d. Declaration of the Lords Commons in Parliament dated the 12 th of January 1642. Concerning the Commission of Array occasioned by a book then lately published Entituled his Majesties answer to the Declaration of both Houses of Parliament concerning the said Commission of Array Printed and Published by the care of Mr. Samuel Brown then and now a Member of the House of Commons wherein many Arguments being used and if they had been grievances would not have become the Parliament to have urged or pressed them as an argument against the Kings having power to raise men by his Commissions of Array and were then so little denyed to be for the necessary defence of the King and his Subjects as they were rather taken by that Parliament to be as the hands and Arms of the bodie politique worthy a continuance perpetuity and very well deserving the good opinion which the Parliament then had of them in the expressions following We deny that there is an impossibility of defence without such power viz. the Commissions of Array And affirm that the Kingdom may be defended in time of danger without issuing such Commissions or executing such power For we say that the Law hath provided several ways for provision of Arms and for defence of the Kingdom in time of danger without such Commissions 1. All the Tenures that are of his Majestie by Barony Grand Seâ—jeanty Knight service in Capite Knight service and other like Tenures were all originally instituted for the defence of the Kingdom in time of War and danger as appears by the Statute of 7 E. 1. of Mortmain which saith servitia quae ex hujus modi feodis dâ—bentur ad defensionem Regni ab initio provisa fuerunt vide Chart. H. 1. irrotulat in libro Rubro Scac. Coke Instit. 75. Bracton 36.37 Britton 162.35 H. 6.41 Coke 8.105 Coke 6. â— Instit. 1 part 103. These Tenures in the Conquerours time were many and since they are much increased and these are all bound to find men and arms according to their Tenures for the defence of the Kingdom 2. As those Tenures are for the defence of the Kingdom so the Law hath given to his Majestie diverse Priviledges and Prerogatives for the same end and purpose that with the profits of them he should defend himself and his people in times of danger of which his Majestie is and always hath been in actual possession since his accesse to the Crown For the defence of the Kingdom his Majestie haâ—h the profits oâ— Wardships Lâ—veries Primer seisins Marriages Reliefs Fines for Alienation Customs Mines Wrecks Treasure trove Escheats Forfeitures and diverse others the like casual profits That by these he may be enabled to defend the Kingdom and that he enjoying them his Subjects might enjoy their Estates under his Protection free from Taxes and Impositions for defence Therefore it is declared 14 E. 3. chap. 1. That all the profits arising of an aid then granted to the King by his people And of Wards Marriages Customes Escheats and other profits riseing of the Realm of England should â—e spent upon the safeguard of the Realm of England on the Wars in Scotland France and Gascoigne and no places elsewhere during the Wars And the Lords and Commons in Rich. 2 time knowing the Law to â—e so did as appears â—y the Parliament â—olls 6 Rich. â— m. 42 passe a â—etition that the King would live oâ— his own Revenues and that the Wards Marriages Reliefs Forâ—â—itures and other profits of the Crown might be kept to be spent in the Wars for the defence of the Kingdom 3. If the said Tenures and casual profits rising by his Prerogative will not serve for defence but more help is necessary by the fundamental Lawes and Constitutions of this Kingdom his Majestie is intrusted with a power to summon Parliaments as often as he pleases for defence of himself and his people when his ordinary Revenues will not serve the turn And there is no other legal way when the others are not sufficient but this and this last hath been ever found by experience the most sure and successefull way for supply in time of imminent danger for defence of the Kingdom and to this the Kings of this Realm have in times of danger frequently had recourse A main end why Parliaments are called is for defence of the Kingdom and that other Supplies thâ—n thâ—se before mentioned cannot be made without a Parliament Nor was there any publique or general damage so much as supposed to be in them the first of February 1642. when in the propositions sent by those Lords Commons which remain'd in Parliament
to the King at Oxford to be treated upon by the Earl of Northumberland William Pierrepont Esq Sr. Wil. Armin Bulstrode Whitlock Esq their Commissioners There was nothing desired or proposed for the taking away of the Court of Wards or changing of Tenures but did conclude that if that which then was desired of the King should be granted the Royalty greatnes of his Throne would be supported by the loyal and bountyfull affections of his people their Liberties and Priviledges maintained by his Majesties protection and Justice They were no part of the Bills or Acts of Parliament sent to the King at Oxford in order to a peace in July 1648. No part of the Demands or Bills or Acts of Parliament proposed by the Parliament in the Treaty at Vxbridge betwixt them and the King 23 Novemb. 1644. And there was so litle of grievance or inconvenience or none at all to be found in Tenures in Capite and by Knight service by reason of any accidents for naturally or originally there can be none at all proved to be in them As notwithstanding the Vote of the House of Commons in Parliament made the 20 th day of September 1645. Which being less then an Embrio and no more then an opinion of the Major part of that House a recens assensio velleity desire or intention only which our Laws take no notice of was left to an after more mature deliberation when an Act of Parliament should be brought in upon it have gone through all its necessary requisites formalities and debates the Parliament it self were so litle resolved or beleiving any Grievance to be in them as the Lords and Commons by their Ordinance of the first day of November 1645. did ordain that the Master and Councel of that Court should proceed in all things belonging to the Jurisdiction of that Court according to Law And the House of Commons shortly after viz. the fourth day of November 1645. being informed that by reason of a Vote passed in that House the 20 th day of September 1645. that the Court of Wards should be taken away diverse Wardships Liveries Primer seisins and Mesne rates which theretofore fell and happened were not compounded for as they ought to be It was declared that all of them which have happened or shall fall or happen before the Court of Wards shall be put down by the Parliament shall be answered to the Common-wealth and the Master and Councel of that Court were required to proceed accordingly so as it extended not to any whose Auncestors being Officers or Souldiers have been slain or died in the service of the Parliament But the 24 th of February 1645. upon occasion of a debate concerning the Wardship of the Son of Sir Christopher Wray who dyed as they said in the service of the Parliament an Ordinance was brought in and made by the Lords and Commons for the taking away of Tenures in Capite and by Knight Service which saith one of their allowed Mercuries was first given to the Crown for defence of the Kingdom but the Parliament would take care for other supplies But that Ordinance notwithstanding was so little liked of as that without the giving satisfaction which they promised to the Nobility Gentry and Mesne Lords for the losse of their Tenures by Knight service and satisfaction to the most part of the Officers of the Court of Wards it was no more or not much thought of but lay from that time in a slumber untill the first of August 1647. when the mighty Mechanicques of the Army driven on by their ignorant and seditious Agitators who were but the Engines of Cromwell's lurking and horrid designs had by their Remonstrances like Wolves cloathed in Sheep-skins bleated and seemed to thirst only after godly and purified Reformations and Hewson the Cobler and Pride the Drâ—yman and others of the Colledge of their nâ—w â—apientia busying themselves in State as well as Parliament affairs and thombing the Scriptures and the English Translations of Livy and Plutarch at the wrong end thought every one of themselves to be no less than a Solon and Lycurgus admired Agrarian Laws and other old exploded grievances dreamed they were excellent Politiques and not knowing our good old Laws but suspecting them as well they might to be averse and no well-wishers to their ungodly and worse than Machiavillian devices did all they could to destroy them root and branch and at the same time when in their New-England Phrase they held forth a more than ordinary Care of the Kings Honour and Dignity and the freedom rights and interests of the seduced people proposed or commanded rather that the Ordinance for taking away the Court of Wards and Liveryes be confirmed by Act of Parliament provided his Majesties Revenues be not damnified therein nor those that held Offices in the same left without Reparation some other way Which howsoever it were to the remaining and small part of that Parliament who durst not say it but found themselves under a force which against many of their willâ— had undertaken to be their Guard and safekeeping a motive or spur enough to make them put that Vote and ordinance against the Court of Wards and Liveries inâ—o an Act as they would call it of Parliament after 10000 l. given paid to the Master of the Court of Wards for the loss of his place 5000 l. to Sr. Roland Wandesford Atturney General of that Court 6000 l. to Sr. Benjamin Rudiard Surveyer General 3500 l. to Charles Fleetwood late Governour of the destroying Committee of Safety for his supposed loss by the Receiver Generals place of that Court which he pretended he ought to enjoy by a Sequestration from Sr. Will. Fleetwood his Brother who was then attending his Master the King at Oxford and to Mr. Bacon 3000 l. for a pretended loss of his Office for the making and ingrossing of Licences or pardons for alienation all of them but Sir Roland Wandesford being Members of Parliament it did without any mention made or remedy provided for those only supposed Evils in Tenures in Capite and Chivalry in the Billsor intended Acts of Parliament which were sent to the King the 3 of March 1647. when he was at Holmby under a restraint fall asleep for many years after and left all other to expect their satisfaction upon the Parliaments promises and further proceedings And there was so little cause for putting that Sentence in execution against them in the judgment opinion of some of the most knowing sort of the Arraigners of antiquity and the actions of their more understanding fore-fathers as Mr. Nathaniel Bacon in his Historical discourses of the uniformity of the Government of England under the Britain Saxon Danish Norman and other Kings of this Isle until the reign of King E. 3. published in Anno 1647. and in his 2 part from King E. 2. until the end of the reign of Queen Elizabeth printed in Anno 1651. in a
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
their winding Sheets It will be against the Peoples Oaths of Supremacy to desire to purchase of or diminish the Kings Rights and Jurisdictions And against their own safety to weaken the hands and power of their Prince that should protect and defend them and commit the trust of protecting and defending the oppressed poor to the oppressing Rich the Chickens to the Kites the harmless Lambs to the cunning Foxes or greedy Wolves the weak and the Innocent to such as shall endeavour to hurt them and charge and burden themselves and their Posterities with a Rent and excise for mischiefs and inconveniences enough in perpetuity Take away that power and ready means of protecting and defending them and that which should enable him to procure according to his Coronation Oath to the Church of God and the Clergy and people firm peace and unity in God according to his power and to administer indifferent and upright Justice by forsaking a certain willing way of defence for a constrained or incertain by taking away the best for so much of it of all defences for that which in the very birth of it is justly feared to be the worst Draw a Curse rather than any expected blessing or happinesse upon all such Tenures in Capite and by Knight service as by seeking to purchase their Homages and obedience to their Prince and a better and long experimented and prosperous way of defence of themselves posterity shall seek or endeavour to break the reiterated oaths and contracts of all their Ancestors to be but a part for a short time of the general defence of the Kingdom like a Life-guard at hand to skirmish and make head against an Enemy untill a Parliament can be called and have time to consult of the means or the whole Nation summoned for help and imbodied will be a perjury more sinful then that of the Children of Israel to the deceitful and turn-coat Gibeonites and may be more severely punished by God Almighty upon the hereafter withering Estates of those men and their generations who shall not only break their own oaths and faith but the oaths and faith also of their more grateful Ancestors who would never have done it Will make our common people which were wont like the lesser Wheels in a well ordered watch to be governed by the greater or superior to run themselves into as many blessings as they did in these last twenty years when they wrested the Sword out of their Kings hands and by the power of those two great Devils Interest Reformation in the abuse and not right use of the words which may well wear the name of those Devils which were called Legion to cut murder pillage and rob the honest and loyal part of the the people lasciviendo in quaerelas quaestiones playing the wantons in their complaints and evil practices which they found to be so beaten a track or rode of prosperity to the journeys end of their wickedness complain of every thing that likes not their fancies or ignorance and from Wardships and Tenures return again in their ingratitude to God and man to their late design of taking away Tithes Coppyholds by enforcing the Lords to take a year or two years purchase for the rights of their Mannors Copyhold Estates from thence to the Act of Parliament intended in our Reformers late deformations to abate Rents where the Landlords were not so well affected as the Tenants to make or maintaine War against their Soveraign And if there had nothing been said or written as we hope there is sufficient to justify the Innocency or right use of Tenures in Capite and by Knight service it had been enough as it was to the vertuous Seneca to be persecuted and put to death by Nero who loved all Ill and hated all Good that Cromwel that Minotaure to whom in his Labâ—rinth of Subtilties Hypocrisy and abused Scripture our Lawes and Liberties were daily sacrificed by the Flattering Addresses of a company of Knaves or Fooles very well know after he had cut down the Royal Oak and blasted all the lofty Pines and Firres in Druina's Forrest procured an Act for renouncing and disannulling the Title of our now most graciovs Soveraign and his Brothers to the Crown of England and their Fathers Dominions and all other which should pretend any Title or Claim from by or under them or any of them how much it concerned his most wicked purposes of establishing that which should be called a Common-wealth under His and his posterities Protectorship and most Arbitrary and Tyrannical Government by a perpetual standing Army of 30000. Horse and Foot an intollerable Excise and monthly Assessements to pay them set up the other or tother House instead of a House of Peers made up for the most part of Mechanicks transformed into Colonels and Major Generalls and some other who might have been better Englishmen then to have been catched in the Trap of Ambition or Titles made the wrong way By which he might check the growing Factions in the House of Commons and destroy their pretended Soveraignity Tax and Rack the estates of all men and more then a Grand Seignior or Turk ever durst adventure upon Command as he should please the Bodies and Souls of the people take away every Surculus or little Sprigs that might grow out of the remaining Sap of that mighty Tree and every thing that might either contribute to it or remain but as Reliques of the Regal Estate and peoples happiness did by an Ordinance as he called it of himself and his Council the 12 th of April 1654. not only ordain an Union betwixt the two Kingdoms but that all the Nation of Scotland should be discharged of all Fealty Homage and Allegiance which is or should be pretended to be due to his Majesty that now is and that neither he nor any of his Royal Brothers or any deriving from the late King should hold Name Title and Dignity of King of Scotland and that all Herritors Proprietors and Possessors of Lands in Scotland should hold their Lands of their respective Lords by and under their accustomed yearly Boones and Annual services without rendring any Duty or Vassallage and discharged them of all military services and well knowing that their old Customes being taken away the Court-Barons would also fail did by another Ordinance erect new Court-Barons for them And having made store of Slaves in that Kingdome made all the hast he could to compleat his wickednesse in this and did the 17 th day of September 1656. procure his houses of Parliament or good will and pleasure rather to doe as much for England and take away all Tenures in Capite by Knight service and all Homages and Reliefs not only do all he could to destroy the heirs thereof but cut the Nerves let out the blood of a most noble antient Monarchy But if there could be any hopes in the Exchange of those
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
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