of us is deemed the same person with us Wherefore by the Councell and consent of the Prelats Dukes Earls Viscounts and Barons of our Kingdom being in our present Parliament we have made and created and by these presents make and create him the said Edward Prince of Wales and Earl of Chester and to the same Edward we give and grant and by this Charter have confirmed the Name Stile Title State Dignity and the honour of the said Principality that he may therein in governing rule and in ruling direct and defend We by a Garland upon his head by a Ring of Gold upon his Finger and a Virge of Gold have according to the manner invested him to have and to hold to him and to his Heirs the Kings of England for ever Wherefore we will and straightly command for us and our Heirs that Edward our Sonne aforesaid shall have the Name Stile Title State Dignity and honour of the Principality of Wales and of the County of Chester aforesaid unto him and his Heirs the Kings of England aforesaid for ever These being witnesses the Reverend Father John Cardinall and Archbishop of Canterbury Primate of all England our Chancellor and William Archbishop of York Primate of England Thomas Bishop of London John Bishop of Lincolne and William Bishop of Norwich our most welbeloved Cousins Richard Duke of York Humpbry Duke of Buckingham our welbeloved Cousin Richard Earl of Warwick Richard Earl of Salisbury John Earl of Wiltshire and our welbeloved and faithfull Cousins Ralph Cromwell Chamberlain of our House William Falconbridge and John Sturton Knights Dated at Our Palace at Westminster â—he fifteenth day of March and in the yeer of Our Raign â—hirty two And here by the way may be observed that in ancient time and in the time of the English Saxon Kings the use was as well in penning the Acts of Parliament as of the Kings Letters Patents when any lands franchises or hereditaments did passe from the King of any estate of inheritance as also in their creations of any Man unto honour and dignity the conclusion was with the signe of the Crosse in forme aforesaid that is his Testibus c. But long time that forme hath been discontinued so that at this day and for many yeares past all the Kings Patents for lands franchizes and hâ—reditaments doe conclude with teste me ipso neverthelesse in all creations of honour and dignity by Letters Patents the ancient forme of concluding with his testihus is used at this day Cookes 8. part 19. And it hath been resolved by the Judges that all Acts of Parliament and Statutes which doe concerne the Prince who is the first begotten son of the King and heire apparant to the Crowne for the time being Perpetuis futuris temporibus in all succession of ages and times be such Acts whereof the Judges and all the Realme must take conusance as of generall Statutes for every subject hath interest in the King and none of his subjects who is within his Lawes be divided from him being his head and Soveraign so that the businesse and things of the King doth touch all the Realme and namely when it doth concerne the Prince the first begotten sonne of the King and Heire apparant to the Crowne Corruscat enim Princeps radlis Regâ—s Patrâ— sii censetnr und persona cum ipso For the Prince shineth with the beames of the King his Father and is holden to be one person with him Cookes 8. part 28. Although the Prince by expresse words hath no priviledge by the great Charter of the Forrest 9 H. 3. cap. 11. for hunting in the Kings Forrests or Parks passing by them and sent for by the Kings commandment yet by construction the Prince is to take benefit and advantage thereby as well as Bishops Earls or Barons who are expressed Crompt Courts des Justices de Forrests 167. In the Parliament 31. H. 8. c. 10. an Act concerning the placing of the Kings children and Lords in the Parliament and other assemblies were amongst other things made as followeth First it is enacted by the authority aforesaid that no person or persons of what degree estate or condition whatsoever he or they be except only the Kings children shall at any time hereafter attempt or presume to sit or have place at any side of the cloth of state in the Parliament chamber neither of the one hand of the Kings Highnesse or of the other whether the Kings Majesty be there personally present or not The Prince shall not find pledges for the prosecution of any Action and therefore shall be amerced more then the King should be or the Queen his wife Vide Cooks 8. part 61. b. Of the most noble and excellent Prince that now is it is truly said that he is omni nomine numine magnus by destiny name providence of God the greatest before Cook to the Reader before his 8. Book the last leaf Neverthelesse as he is a distinct person by nature from the King so is he distinct by the Law viz. a Subject and holdeth his principalities and seigniories of the King neither shall he have all those Prerogatives which the King shal have for example when the King seizeth his Subjects lands or taketh away his goods from him having no title by order of the Law so to do In this case the Subject is to sue to his Soveraign Lord by way of Petition onely for other remedy hath he not but suit by Petition can be to none other then to the King for no such suit shall be made to the Prince but Actions as the case requireth as against a Subject Stamf. praerog ca. 22. And in token of subjection the Prince doth not upon his Posie of his Arms disdain the old Saxon word Ichdien I serve as Lambert doth mention in his Book of Perambulation of Rent 364. And there is a case that Gascoin chief Justice of Engl in the time of H. 4. did commit the Prince who would have taken a prisoner from the Bar in the Kings Bench and the Prince did humbly obey and did go at his command in which the King did greatly rejoyce that hee had such a Judge who durst minister justice upon his son and also that hee had a son so gracious as to obey Court de Banco Regis 79. Crompton A question was moved to the Justices in the first yeer of H. 7. what order should be in that present parliament for the anulling and making void certain attainders for so much as divers who were returned of that Parliamet did stand attainted of treason and all the Justices resolved That so many of the Knights of the shires or Citizens or Burgesses as stood then attainted of treason should depart out of the Parliament house at the reversall of the Act of Parliament for their attainders But â—s soon as the Act of Parliament was reversed and annuld that they and every of them that is to say Lords and Commons should come into
their places and then may proceed upon any thing there moved lawfully as lawfull persons for it is not convenient that they who are attainted should be in places of law full Judges And then another question was moved What shall be said of the King himself for he also was attainted by his Predecessour Rich. 3. and after communication had amongst themselves all did agree that the King was a person able and discharged of any former attainder ipso facto That he took upon him to raign and to be King by which it manifestly appeareth that by the Laws of England there can be no inter regnum within the same that presently by descent the next heir in blood is coÌ„pleatly and absolutely King without any essentiall Ceremony or act to be done ex post facto And that Coronation is but a royall ornament and outward solemnization of the descent and of this last matter Read Cooks 7 part fol. 10. 6. and that there followeth Of Dukes THe form of the Patent of Duke of York that now is Rex c. To all Archbishops Bishops Dukes Marquesses Earls Viscounts Barons Justices Governours Knights Ministers And to all Bailiffs and faithfull Subjects greeting Whereas We often times call to minde how many and innumerable gifts and what excellent benefits that great worker of all goodnesse of his only benignity and clemencie hath abundantly bestowed upon Us who by his power hath consociated divers and mighty Lyons in firm peace without any strife but also hath amplified and exalted the bounds and limits of our Government by his unspeakable providence above our progenitors with an indissolvible conjunction of the ancient and famous Kingdoms in the right of blood under our Imperiall Diadem in regard whereof we cannot but most willingly acknowledge our fruitfulnesse and issue plentifully adorned with the gift of Nature which he hath vouchsafed upon us because in truth in the succession of children a mortall man is made as it were immortall Neither unto any mortall men at leastwise unto Princes not acknowledging superiours can any thing happen in worldly cases more pleasant and acceptable then that their children should become notable in all vertues gooodnesse manners and increase of dignity so as they which excell others in noblenesse of bloud and indowments of Nature might not be thought of others to be exceeded Hence it is that that great goodnessâ— of God which is shewed unto us in our fertility to passe in silence or to be thought not to satisfie the Law of Nature whereby we are chiefly provoked to be well affected and liberall to those in whom we behold our blood to begin to florish coveting with great and fatherly affection that the perpetuall memory of our blood with honours and increase of dignity and all praise may be affected Our well-beloved Son Charls Duke of Albany Marquesse of Ormond Count of Rosse and Lord of Ardmannoth Our second begotten son in whom the Royall form and beauty worthy honour and other gifts of vertue do now in the best hopes shine in his tender graces We erect create make and ordain and to him the name stile state title dignity authority and honour of the Duke of York do give and him of that Name with the title state stile honour authority and dignity with other honors to the same belonging and annexed by the girding of the sword cap circlet of gold put upon his head and the delivery of a golden Virge we do really invest to have and to hold the same name and stile state and dignity authority and honour of the Duke of York unto the aforesaid Charles our second begotten son and to his heirs males of his body lawfully begotten for ever And that the aforesaid Charles our second begotten son according to the decencie and state of the said name of Duke of York may more honorably carry himself we have given and granted and by this our present Charter we confirm for us and our heirs unto the aforesaid Duke forty pounds to have and yeerly to receive to the foresaid Duke and his heirs for ever out of the Farms issues profits and other commodities whatsoever comming out of the foresaid County of York by the hands of the Sheriffe of the same County for the time being at the Terms of Easter and Michael the Arch-angel by even portions for that expresse mention of other gifts and grants by us unto the same Duke before time made in these presents made doth not appear notwithstanding These be witnesses the most excellent and most beloved Henry Prince our first begotten son Vlrick Duke of Holst brother of the queen our beloved wife and the Reverend Father in Christ Richard Archbishop of Canterbury Primate and Metropolitan of all England and also our welbeloved and faithfull Councellour the Lord Elesmore and Chancellour of England Thomas Earl of Suffolk Chamberlain of our houshold and also our dear cousin Thomas Earl of Arundel and our well-beloved cousin and Councellour Henry Earl of Northumberland Edward Earl of Worcester Master of our horse George Earl of Cumberland and also our well-beloved cousins Henry Earl of Southampton William Earl of Pembroke and also our well-beloved cousins Charles Earl of Devon Master of our Ordinance Henry Earl of Northampton Warden of the Cinque-Ports John Earl of Marr Robert Viscount Eranborne our principall Secretary and our well-beloved and faithfull Councellour Edward Lord Zuch President of out Councell in the Principality and Marches of Wales and also our wel-beloved and trusty Robert Lord Willoughby of Earsby William Lord Mounteagle Gray Lord Chandois William Lord Compton Francis Lord Norris Robert Lord Sidney our well-beloved and faithfull Councellours William Lord Knowles Treasurer of our houshold Edward Lord Wotton Comptroller of our houshold and our well-beloved and faithfull Councellour Alexander Lord and also our wel-beloved and faithfull Councellors George Dunbarr Lord of Barwick Chancellour of our Exchequer Edward Lord Bruse of Kinlose Master of the Rolls of our Chancery and also our faithfull and well-beloved Thomas Lord Eskine of Bielton Lord Balmermoth and others given by our hand at our Pallace of Westminster the sixth day of January in the second yeer of the Raign of K. James K. Edw. 3. in the 11 year of his Raign by his Charter in Parliament and by authority of Parliament did create Edw. his eldest son the Black-Prince D. of Cornwall not onely in title but cum feodo with the Dutchy of Cornwall as by the tenour of the said Letters Patents exemplified may appear Cookâ— 8 part in the pleading Habend ' et tenend ' eidem duci et ipsius et heraed ' suorum Regum Angliae filiâ—s primâ—gâ—niâ—is et dicti loci dâ—â—ibus in Regno Angliae bereditatoriae successoris To have and to hold to the same Duke and his heirs Kings of England the first begotten sons and Dukes of the same place in the kingdom of England and to hereditary succession so that he that is hereditable must be heir
reserving a rent with reentry for default of payment and after his assumption of the Crown the rent happen to be unpaid he might re-enter without demand for the King is not bound to do such personall Ceremonies as the Subjects are by the Law compelled to do Therfore to have the said Dutchy to be still a Dutchy with the liberties to the same as it was before and to alter the order degree of the lands of the Dutchy from the Crown the said King H. 4. made a Charter by authority of Parliament which is intituled Charta Regis Henrici quarti de seperatione ducatus Lancastria a corona authoritate Parliamenti anno Regni sui primo The Charter of Henry the fourth for the separation of the Dutchy of Laucaster from the Crowne by the authority of Parliament in the first yeâ—r of his raign of the said King as by the tenure thereof may appear And so by authority of Parliament the said Dutchy withall the Franchises and liberties were disjoyned from the Crown and from the Ministers and Officers of the Crown and from the receit of the revenues of the Crown and from the order to passe by conveyance which the said Law did require in the possessions of the Crown But although the possessions of the Dutchy by force of the said Statute stood divided from the Crown and ought to be demeaned and ordered and passe as they ought before Henry the fourth was King yet there is no clause set down in the said Charter which doth make the person of the king who hath the Dutchy in any other degree then it was before but things concerning his person shall in the same estate as they were before seperations Insomuch as if the Law before the Charter by the authority of Parliament adjudged the person of the King alwayes of full age having regard unto his gifts as well of the lands which he doth inherit in his naturall body as in that he doth inherit in the right of his Crown or politique body it shall be so adjudged for the Dutchy land after the said Statute for the Statute doth go and reach unto the estate condition and order of the lands of the Dutchy but doth not extend to the person of the king who hath the lands in points touching his person neither doth it diminish or alter the preheminences which the Law doth give or attribute to the person of the King For if king Henry 4. after the said Act had made a 〈◊〉 or other grant of parcell of the Dutchy by the 〈◊〉 of H. Duke of Lancaster onely it had been void for it should have been made in the name of Henry 4. king of England And thus stood the Dutchy of Lancaster severed from the Crown all the raign of H. 5. and H. 6. being politiquely made for the upholding of the Dutchy of Lancaster their true and ancient inheritance howsoever the right heir uuto the Crown might in future time obtain his right thereunto as it happened in king Edward 4. his time But after king Edward 4. obtained his right unto the Crown of England and was in his remitter he in Parliament attainted H. 6. and appropriated unity and annexed the said Dutchy again unto the Crown of England as by the Statute thereof made in the first yeer of his Raign may appear By which Statute three things were ordained 1. First the County Palatine of Lancaster was again established 2. Secondly he did vest it in the body politique of the kings of this Realm 3. Thirdly he did divide it from the order of the Crown-lands and in this force it did continue untill the time of H. 7. who forthwith being descended from the house of Lancaster did separate it onely in order and government from the Crown and so continueth at this day and all that is before spoken concerning the Duke and the Dukedom of Lancaster appeareth in Plowden 212. and that which there followeth Before I write further concerning the Nobility I should set down the form of the Kings Letters Patents of their Creations and the manner of solemnity used in the admittance and investry of Marquesses Earls Viscounts and Barons according to their severall degrees But I do willingly omit so to do partly because in effect the same may appear by that before recited Patent for the Creation of a Duke altering onely such things which of right ought to be altered and partly because their Patents are not onely extant and of Record but also because all those things are to be read in a printed English Book of this subject judicially made by Tho. Mills being a matter also proper to the Colledge and Corporation of Heralds and not unto the drift of my discourse and I will briefly set down some other things observable concerning each of them Of Marquesses A Marquesse that is if we consider the very nature of the word is a Governour of the Marches and hath the next place of honour after a Duke This title came to us but of late dayes and was not bestowed upon any one before the time of King Rich. 2. who made Robert Vere Marquesse of Dublin and then it became with us to be a title of honour for before time those that governed the Marches were called commonly Lords Marchers and not Marquesses After the Normans had conquered this land it was carefully observed by them as a matter of much moment and a point of speciall policie to place upon she confines and borders of the Britains or Welsh c. not then subdued men of much valour not onely sufficiently able to incouuter the inrodes and invasions of the enemy but also willing to make on-set of them and inlarge the Conquest these men thus placed were of high bloud credit and conntenance among their country-men the Normans and in whose faith and power the Conqueror reposed speciall confidence and trust and therefore in their territories given unto them to hold their tenures were devised to be very speciall and of great importance and their honours inriched with the name and priviledges of Earls of Chester and for the North border of Wales created to be a County Palatine and the Barons of the middle Poâ—t of the South Marches were adorned in a manner with a Palatine Jurisdiction having a Court of Chancery and Writs only among themselvs pleadable to thâ— inteâ—t that their attendance might not thence be driven for the prosecution of controversies and quarrells in the Law and as for the other part of the South Marches they seemed sufficiently fenced with the River of Severn and the Sea Of Earls FIrst It is to be observed that originally within this Kingdome Earldomes of Counties in the ancient English Saxon Government were not onely Dignities of Honour but also Offices of justice for that they did further the administration of justice in the Counties whereof they were Earls or Aldermen They had likewise their Deputies under them the Sheriff an Officer yet in being and retayning the name
to mention one case which I read in the bookes of the common Law concerning the discent of a title of honor whereof the Ancestor had estate in fee simple There is a maxime in the Law Possessio fratris de feodo simplici facit ' sororem esse heredem the possession of the brother in fee simple doth make his sister to bee his heire But if a man by any of the three names before mentioned be created into a title of dignity to him and to his heires for ever and hee hath issue a sonne and a daughter by one Venter and hath also a sonne by a second wife afterwards the Father dyeth and his eldest sonne entreth into all his Fathers inheritance and also enjoyeth the title and name of dignity which his Father had but dyeth without issue In this case the dignity shal goe and discend unto the younger sonne though hee be but of the halfe blood unto him that last enjoyed that name and title by discent and shall â—ot discend unto his sister of the whole blood and yet in this case shee should only bee her brothers heire of all his fee simple Lands and the reason and cause hereof is because Possessio fratris because the possession of the brother is the maine and sole cause which may give title to her his sister which fayleth in this cause of dignity For it cannot be said that her eldest brother was in possession of his title of honour no more then of his blood For the diguity was inherent to his blood so that neither by his owne Act neither by any act to be done by another did hee gaine any more actuall possession if so it may be termed then by the law did discend unto him and therfore the younger brother may well by the Law make himselfe heire unto his Father of the honour though hee cannot be heire unto his brother so that this word Possessio which is none other then pedis positio a fixing of the foot extendeth only unto such things of which a man may by his entry or other act and doth require actuall possession Cooks 3. part 42. Ratclâ—ffs case And having thus much dilated concerning the creations and other things incident to the degrees of Nobility I cannot with silence pretermit something to declare concerning that sufficiency and ability of estate which the Law doth require to be in every of them according to their severall dignities The Common Law alwayes will that decorum and conveniency be observed considering the charges and expences appertayning to these degrees and dignities being offices of principall service to the King and the Realme both in time of warre and peace as hath beene said hath ordered that each of them have a convenient portion and value of lands of inheritance for the support of their honours which supplyes are as sinewes conjoyned unto the same For in vertue and in riches as Aristotle counselleth all the old Nobility consisted and which two as Ecclesiastes teacheth maketh a good accomplement for saith he Vtilior est sapientia cum divitiis conjuncta Lamberts Perambulation of Kent â—68 Therefore a Knight ought to have 20. l. land by the yeâ—re a Baron 13. Knights fees and a quarter an Earle 20 knights fees and this doth appeare by the Statute of Magna Charta cap 2. For alwayes the fourth part of such Revenues which is by the Law requisite to the dignity shall be paid to the King for reliefe as for example The reliefe of a Knight is five pound which is the fourth part of 20. l. which is the revenue of a Knight see the Statute hereof 1 E. 2. and the reliefe of a Baron is a 100. markes which is the fourth part of his revenues that is to say 400. markes a yeare which doth include 13. Knights fees and a quarter and the reliefe of an Earle is a 100. l. which is the fourth part of 400. l. which is the revenue of an Earle and it appeares by the Records of the Exchequer that the reliefe of a Duke amounteth unto 200. l. and by consequence his revenue ought to be 800. l. per annum and this is the reason in every of our bookes that every of the Nobility is presumed in our law to have sufficient free-hold Ad sustinendum nomen onus and to what value these ancient rents in time of H. 3. Edw. 1. at this day do amount unto every man knoweth not Cooke 7. part 33. And in cases of decay of Nobility and meanes as Senatores Romani rereamoti senata as Senators of Rome were removed from the Senate so sometimes they are not admitted to the upper house in the Parliaments though they keepe the name and title of dignity still Sir Thomas Smith de reipub Angl. 221. And by a Statute made 31. H. 8. ca. 10. The Lords have their places prescribed after this manner following viz. these foure the Lord Chancellour the Lord Treasurer the Lord President of the Councell and the Lord Privie Seale being persons of the degree of a Baron or above and in the same act appointed to sit in the Parliaments and all assemblies or Councell above all duties not being of the blood royall viz. the Kings brother Vncle Nephew and these sixe the Lord High Chamberlaine of England the Lord Marshall and the Lord Admirall of England the Lord Steward of the Kings House and the Lord Chamberlaine of the Houshold by that act to be placed in all assemblies of Councell after the Lord Privy Seale according to their degrees and estates so that if hee bee a Baron then hee is to sit above all Barones or an Earle above all Earles and so likewise the Kings Secretary being a Baron of the Parliament hath a place above all Barones and if hee bee a man of higher degree hee shall sit and bee placed according thereunto Priviledges incident to the Nobility according to the Lawes of England VVHen a Peere of the Realme and Lord of the Parliament is to be arraigned upon any treason or fellony whereof he is indicted and whereupon hee hath pleaded not guilty the King by his Letters Pattents shall assigne some great and sagâ— Lord of the Parliament to bee High Steward of England for the day of his arraignement who before the same day shall make precept to his Sergeant at armes that is appointed to serve him during the time of his Commission to warne to appeare before him 18. or 20. Lords of the Parliament or 12. at the least upon the same day and then at the day appointed when the High Steward shall bee set under the Clothe of State upon the arraignement of the Prisoner and hath caused the Commission to bee read the same Sergeant shall returne his Precepts and thereupon the Lords shall bee called and when they have appeared and set in their places the Constable of the Tower shall bee called to bring his Prisoner into the Court who then shall bring his Prisoner to the Barre and the High
Marquesse Earle Vicount or Baron do as the manner is by his Letters Parents give unto such new created Noblemen an Annuity or Rent for the support of his degree which they call creation Money this is so annexed unto the Dignity that by no grant assurance or any manner of Alienation it can be given from the same but is still incident and a support of the same Creation Dyer fol. 2. c. Jn all Cases wherein Suite of Law a Baron or Peere of the Realme is to be amerced other then a Duke his amercement is no â—esseâ—â—â—a 100. s. 9 E. 4. 9. 21. E. 4. 77. 38. E. 3. 31. 9. Hâ— 6. 21. but the amercement of a Duke is 10. l. 19. E. 4. 9. â— H. 6. 7. although the Statute of Magna Charta Chap. 14. be in the negative viz. Comites at Barones non â— merciantur nisi per pures suos et non nisi secundum modum delicti and yet the usage hath reduced it into a certainty also by the same Statute it appeareth that such amercements should be afferred per pures suos but for that it were troublesome to assemble Barons for so small a matter such amercements in times past hath beene afferred by the Barons of the Exchequer who sometimes were Barons of the Realme as is before in this Treatise mentioned and hereof writeth Bracton Lib. 3. Tract 2. chap. Fol. 116. viz. Comitet vero vel Barones non sunt amerciandi nisi per paces suos secundum modum delicti hoc per Barones de Scacario vel coram ipso Rege Vid. Cooke 8. part 39. sequentiae this Section is to be omitted because it is more fitly to be written hereafter If a Plaintiffe recover against a Peere of the Realme in an Action of debt or trespasse upon such a Plea pleaded by him or other default in him so that a Fine thereby doth grow to the King and thereupon a Capias per Fine issueth out against him this shall not prejudice that Nobleman so as the Plaintiffe may thereby take advantage by prayer that he shall abide in Execution for the Plaintiffe neither without his prayer not though he doe pray it by the opinion of Brian Justice 14. H. 7. 21. VVhereas by a Statute made 32. H. 8. Cap. 16. Jt is enacted that the Subjects of the Realme shall not keepe in their Families or Houses above the number of Foure Strangers borne neverthelesse by a proviso in the said Act every Lord of the Parliament hath his priviledge allowed unto him to keepe in his Family the number of six Strangers borne any thing in that Act to the contrary notwithstanding By the Statute of 24. H. 8. Cap. 13. a. A Priviledge was granted to the Nobility according to their degrees concerning their Apparell but because by a Statute made in the first Yeare of the King that now is Chap. 25. all Lawes and Statutes made concerning Apparell are taken away I leave further to speake of that matter 1. Jac. cap. 25. By the Statute of 5. R. 2. cap. 12. The King our Soveraigne Lord of his Royall Majesty defendeth the passe utterly of all manner of people aswell Clarkes as others in every Port and other Towne and place upon the Coasts of the Sea upon the paine of forfeiture of all their goods except onely the Lords and other great men of the Realme and true and Noble Merchants and the Kings Souldiers and every person then is before excepted which after publication of this Ordinance made shall passe out of the said Realme without the Kings speciall Lycence which Lycence the King willeth and commandeth that it be not from henceforth made but in one of the Ports vnder written that is to say London Sandwich Dover Southampton Plimouth Dartmouth Bristoll Yarmouth St. Buttolphe Kingstone upon Hull Newcastle upon Tine and the other parts and passages towards Ireland and the Iles pertaining to England shall forfeit towards the King as much as he hath in goods as afore is said but because this Statute is also taken away by a late Act of Parliament made in the fourth yeare of King James cap. 1. J doe not set downe this for one of the Priviledges appertaining to the Nobility at this day But Phillip Earle of Arundel Sonne of Thomas Duke of Norffolke was taken upon the Sea passing into France about the 30. yeare of the late Queene and was fined in the Star-chamber to a great summe because he did not take Shipping at one of the Ports mentioned Cromptons Courts 31. Whereas by the Statute of 2. H. 2. Parl. 2. cap. 1. Jt is ordained that the Justices of Peace in every County named of the Cuâ—rum should be resident in the Shieres wherein they are Justices there is a Proviso whereby the Lord and Peeres of the Realme named in such Commission are excepted By the Statute of 1. E. 6. cap. 12. amongst other things it is enacted that in all and every case and Cases where any of the Kings Subjects shall and may upon his Prayer have the Priviledge of his Clergie as a Clarke Convict that may make purgation in all those Cases and every of them and also in every Case and Cases of Fellony wherein the priviledge and benefit of Clergie is taken away by this Statute wilfull malice and poysoning of malice prepensed onely excepted the Lord and Lords of the Parliament and Peere and Peeres of the Realme having place and voyce in Parliament shall by vertue of this Act of Common grace upon his and their Requests and Prayer alleadging that he is a Lord or Peere of the Realme claiming the benefit of this Act though hee cannot reade without burning of the Hand losse of Inheritance or corruption of his blood bee adjudged deemed taken and used for the first time onely to all Jnstructions intents and purposes as a Clarke Convict which may make purgation without any further or other benefit of the Clergy to any such Lord or Peere from thenceforth at any time after for any cause to bee allowed adjudged or admitred any Law Custome Statute or any thing to the contrary notwithstanding By this Statute a Lord of the Parliament shall have the priviledge of his Clergy where a common person shall not viz. for the breaking of a house by day or night for robbing of any in the high way and in all other cases excepted in the Statute of 1. E. 6. 12. saving in wilfull murder and poysoning But in all other cases wherein Clergy is taken away by any Statute made since the said Statute of 1. E. 6. he is in the same Degree that a common and inferior person is but the Court will not give him the benefit of this Statute if he doe not require it Jf the Lord of the Parliament doth confesse his offence upon his Arraignment or doth abjure or is ourlâ—wed for Fellony it seemes that in those cases he may have the benefit of this Statute viz. his Clergy for that by the Statute of 18.
tryall hereof shall not be by Record as in the former case but by a Jury of 12. men and the reason of the diversity is because in this case the Dignity is accrewed unto her by marriage which the Lawyers tearme matter in fact and not by any record Cookes 6. part 53. a. But a noble Woman by Marriage though she take to her a second Husband a man of meane degree yet shee may keepe two Chaplaines according to the Proviso in the Statute of 21. H. 8. c. 13. for and in respect of the honour which once she had viz. at the time of the retayner and every such Chaplaine may purchase lycense and dispensation Cookes 4. part 117. Cowels Instutions lib. tit 10. 15. but her Chaplaines may not be nonresident afterwards And forasmuch as the retayning of Chaplaines by Ladies of great estates is ordinary and neverthelesse some questions in law have beene concerning the true understanding of the said Statute law I thinke it not impertinent to set downe some subsequent resolutions of the Judges touching such matters Anne Baronesse of Mount Eagle in her Widdowhood did retaine two Chaplaines according to the Statute and one of them had but one Benefice and therefore did obtaine a dispensation with a confirmation from the Queene according to the tenour of the said Statute but before he was presented to his second Benefice the Lady did take to Husband Henry Lord Compton whereby she did forsake her former dignity of Baronesse of Mount-Eagle and afterward the said Chaplain did accept a second Benefice and was therunto admitted and inducted and the Judges have resolved that the Chaplain hath done nothing herein but according to the meaning of the Statute and that the Ladies marriage between his Retainer and acceptance of his second benefice was no Countermand Revocation or determination of that Retainer which the Lady lawfully then did make but that she living he might proceed to the filling up of the qualification Causa origio est materia negoti for though the wife of a Noble-man during the covecture cannot by Law rerain a Chaplain to be quallified according to the statute because by Intendment her Husbands Chaplains are sufficient for that Office yet forasmuch as the Retainer was lawfull then she was widdow that being the principall matter shall enable him to take use and benefice after her marriage for though the husband and wife are but one person in Law yet as the Text is sunt animo duo in carne uno Bracton lib. 5. fol. 363 a. And in this case by the death of the Lord Compton her first Retainer was not determined for without any neer Retainer her said Chaplain may take his second benefice and also for that cause so long as the said Chaplains do attend upon their said Lady in her House they shall not be endammaged for Non-residency Cooks 4. part 117. fol. 90 76. That which remains concerning the further exposition of this statute you may read before in the title of priviledge of Lords So long that the wife of a Duke be called Dutchesse or of an Earl be a Countesse and have the fruition of all the Honours appertaining to that estate with kneeling tasting serving and the rest and so long shall a Barons widow be saluted Lady and a Knights wise also by the courteous Speech of England quandiu Maj. aut viduitas vic durant except she happen to relaps with an Adulterer for as the Laws of this Kingdome do adjudge that a woman shall lose her dower in that case viz. west cap. B. F. N. B. fol. 150. H. Perk. fel. 70. Kitchin 162. b. as Ruto Lands and Tenents so justly so doth the Laws of Gentry and Noblenesse give sentence against such a woman advanced to Titles of Dignity by the husband to be unworthy to enjoy the same when she putting her husband out of mind hath subjected her self to another If a Lady which is married come through the Forrests he shall not take any thing but a Dutchesse or a Countesse shall have advantage of the statute de Charta Forest 11. Art during the time that she is unmarried Cromptons Court fol. 167 b. Wheras it is contained in the great Charter amongst other things in the Form which followeth no Freeman shall be taken or imprisoned or deseised of his Free-hold or his Liberties or Free-customs or shall be outlawed or banished or in any wise destroyed nor go upon him but by the lawfull judgment of his Peers or by the Law of the Land In which statute is no mention made how women Ladies of great estate because of their Husbands Peers of the Land married or sole that is to say Dutchesse Countesse or Barronesse shall be put to answer or before what Iudges they shall be judged upon an Inditement of Treason or Fellonyes by them committed or done because wherof it is an Ambiguity in the Law of England before whom and by whom such Ladies so endicted shall be put to answer and be judged by our said Soveraign Lord the King willing to put out such Ambiguities and Doubts hath declared by Authority aforesaid that such Ladies so endicted or hereafter to be endicted whether they be married or sole therof shall bee brought in answer and put to answer and judged before such Iudges and Peers of the Realm as Peers of the Realm should be if they were endicted of any Treasons or Fellonyes done or hereafter to be done and in like manner and Form and in none otherwise Anno 2. H. 6. Cap. 9. Which statute was but a Confirmation or Declaration of the common Law vide Cooks 6 part 52. b. This is a Rule in the civill law si filia R. nubat alicui dom vel Comiti dicetur semp Regalis As amongst Noble women there is a difference of degrees so according to their distinct excellentnesse the law doth give speciall Priviledges as followeth By the statute of 25. E. 3. cap. 2. It is High Treason to compose or imagine the death of the Queen or to violate the Kings Companion The Kings Espouse is a sole person exempted by the common law and she may purchase by Fee-simple or Make leases or Grants without the King she may plead and be impleaded which no other married woman can do without her husband Cook 4 part 23. B. Theol. lib 1. cap. 4. 24. E. 3. 63. vide Bracton 363. a. All Acts of Parliaments for any cause which any way may concern the Queen and her Capacity are such statutes wherof the Judges ought to take recognisance as of generall statutes for though the matter do only concern the Capacity of the Queen yet it doth also concern all the subjects of the Realm for every subject hath interest in the King and none of his Subjects who are within his Lawes in divided from the King being his head and Soveraigne so that his businesse and things do touch all the Realme and as all the Realme hath interest in the King so and
for the same Reason in the Queene being his wife Plouden 23. 1. a. Coâ—kes 8. Repl. 28. A man seised of divers Lands in Fee holden by Knights service some by Prioritie that is by ancient Feofment holden of others and some other parts holden by the same tenure of the King by posteritie the King granteth his Seigniory to the Queene and afterwards the Tenant dyeth the sonne within age in this case the King shall have the Wardship of the Body and have the Prerogative even as the King himselfe should have had 3. E. 3 4. vide etiam Stamford Prerog Reg. cap. 2. The Queene wife unto the King or widdow shall not be amerced if she be non-suited in any Action or otherwise in which cases any other subject of what degree soever shall be amerced for in this case the Queen shall participate the Kings Prerogative Cookes 6. Report 62. But the Queene shall not in all cases have the same Prerogatives that the King shall have in the same case as for Example Petition is all the remedy the Subject hath when the King seizeth his Lands or taketh away his Goods from him having no title by order of Law so to doe contrary to the opinion of some ancient Bookes as you may see Stamfords Prerog cap. 19. But in such suit shall be made to the Queene but actions against other Leiges of the King according as the case shall require for by the same reason that the Queene may be Plaintiffe and Demandant in actions without the King by the same reason that the Queene may be Plaintiffe and Demandant in actions without the King by the same reason he shall be Defendant or Tenant without pertaking such Prerogatives as doe appertaine to the King 11. H. 4. 64. B. Stamford Prerog cap. 22. in fine Against the King by his Prerogative Nullum tempus occurit Regi but time shall runne against the Queen H. 18. E. 3. 2. a. and aplenarty by sixe mouthes is a good plea in a Quare Imp. brought by Philippa Regina Angliae ibid. fol. 1. et 13. b. Stamford Prerog cap. 18. prope finem In 21. E. 3. 13. b. It is thus to be read note that a protection was sued forth against the Queen in a Writ which she brought and it was allowed though shee be a person exempt Neverthelesse by this short case following may bee observed that the Justices doe not easily suffer any proceedings in Law against the Queene wife or widdow but will hold with their Inmities as much as they may by Law A Writ of dower was brought against Isabel Queene of England mother of the King that then was and the Couâ—t said to the Plaintiffe the Queene is a person of dignitie and excellencie and we are of opinion that she shall not answer to the Writ but it behooveth you to sue to her by Petition and thereupon the Demandant dixit grat and shee prayed the Court to grant a continuance of her Action untill another day so that in the meane time she might sue to speake with the Queen but the Court would not agree to make a Continuanâ—e but said that upon her request they might give day precepart and so it was done for the Queenes Couneell would not agree to a continuance for thereby the Queene should bee accepted as answerable 10. E. 3. 379. The wife of the Kings eldest sonne also hath some Prerogative in regard of the excellencie of her Husband which the wives of other Noblemen have not for by the Statute of 25. E. 3. it is high Treason to violate the wife of the Kings eldest sonne and heire Dutchesses also and Countesses have speciall Honour appertaining to their Estates as kneeling and tasting and such like which things as appertaining more properly to the Heraulds then to this legall discourse I leave unto them By the Statute made 7. Iac. cap. 6. intituled An Act for the Administring the oath of Allegiance and Reformation of Women recusants if any person or persons of or above the age of 18. yeeres and degrees aforesaid must and hereafter shal stand and be presented indicted or convicted for not comming to Church or not receiving the holy Communion or Sacraments of the Lords Supper according to the Lawes and Statutes of this Realme before the Ordinary or other having lawfull power to take such presentment or indictment then 3. of the Privie Counsell of the King his Highnesse his Heires or Successours and no other whereof the Lord Treasurer the Lord Chancellour Lord Privie Seale or principall Secretary to be one upon knowledge shall require such person or persons to take the said Oath but it shall be lawfull to and for every Bishop within his Diocesse to require any Baron or Barons of the age of 18. or above to take the said Oath Also in cases of indictment of Felony or Treason a Baronesse shall have the same tryall by Peeres as doth appeare by the Statute of 20. H. 6. cap. 9. which any other Noble woman of higher degree shall have which priviledge is denyed to all of a lower degree then a Baronesse Ladies in Reputation The wife and widdow and widdow of the sonne and heire of a Duke or Earle in the life of his Father is a Lady by courtesie of speech and honour and taketh place according as in ancient time hath been permitted by the Soveraign Prince and allowance of the Herauld but in legall proceedings they are not to have priviledges nor to be named according to such sirnames of dignity but the King may at his pleasure create such men in the life time of their Ancestors into degrees of Lords of his Parliament and then the Law is otherwise If a Noblewoman of Spaine come into the Realme by safe conduct or otherwise by the King shee be stiled by such her forraign stile of dignity yet in the Kings Courts of Justice she shall not be named by such title though by common speech she be a Lady in reputation An English woman borne doth take to her Husband a Spanish or French Duke though he be made a Denizen yet he shall not beare his title of dignity in legall proceedings A German woman is married to the Earl of Northam or to other the Nobility of England unlesse she be made a Denizen she cannot lawfully claim the priviledges or title of her husband no more then she can to have dower or any jointure from him An English Woman doth take to Husband the Earle of Kildare in Ireland or if a Lord of Scotland though he be a post natus take an English woman to his wife their wives shall not participate their husbands Titles of Dignitie But if the King do create one of his Subjects of Scotland naturalized here by Act of Parliament to be Viscount Rochester within England and after by his Writ of Summons under his Great Seale doe call him to his uper House of his Parliaments and assigne him a place there in his great Councell amongst the Lords and Peeres of
Lands to a Knight to hold of him by service in Chivalry to go with the King or with his Lord when the King doth make a Voyage Royall to subdue his Enemies by 40 days well and conveniently arrayed for the Wars In this case the Law hath such regard to the dignity of Knighthood that he â—ay find an able person to go in that expedition for him and the Knight is not compellable by his tenure to go in person as do ordinary souldiers who are hired and entertained by prest money or wages Anno 7. Ed. 3. 296. 600. 8. part fol. 49. b. And see Littleton fol. 20. another reason in this case There have bin many vaâ—rying opinions of Countries of a Knights Fee as you may read in 5. Ed. Cooke 9. part of his Reports fol. 124. where he seemeth to prove that antiquity hath thought that 20. l. in land was sufficient to maintain the degree of a Knight as it appeareth in the ancient Treatise De modo tenendi Parliamentum tempore Regis Edw. filii Regis Etheldred Which also doth concur with that Act of Parliament made Anno 1. Ed. 2. de militibus by which Act of Parliament Census militis The state of the Knight is measured by 20. l. land a year and not by any certain content of acres and with this doth agree the state of Westmin ca. 36 and Fitz-natum Brev. 82. where 20. l. land in socage is put in Equipage with a Knights Fee and this is the most reasonable estimation for one acre may be lesse in value then many others vid. An. 27. E. 3. c. 11. the printed books of the titles of honor 319. M. Selden nata And it is to be observed that the relief of a Knight of all Superiours that are noble is the 4. part of their revenue by the yeer as of a Kt. 5. l. which is the 4. part of 20. l. sic de cet And this doth appear by the statute of Mag. charta ca. 8 as in Cooks 9. report f. 124. b. And because this tenure doth concern service in war the Tenants therfore are named milites a militia For though the word do properly signifie a souldier yet antiquity hath appropriated that name to the chiefest of the military profession vid. Bract. f. 35. b. In our law they are stiled Miles and never Equites yet so that Miles is taken for the selfsame that Chevalier by M. Selden in his Titles of Honour 1. Impression f. 334. Bracton f. â—9 maketh mention of Râ—d-knights that is to say serving horsemen who held their lands with condition that they should serve their Lords on horseback and so by the cutting of a piece of a name as our delight is to speak short this name of Knight remaineth with us Cambden fol. 171. for Armiger scilicet Esquire which is a degree under a Knight was in the Militarie Service Note that he that holdeth by a whole Knights Fee must bâ— with the King by 40. days well and conveniently arrayed for the war Littleton fol. 20. which is to be understood to serve on horseback And in all Nations the name of this dignity is taken of Horses for the Italians calleth them Caveleiri the French-men Chivalers the Germans Roysters our Britains in Wales Morgogh All of Ryding in Latin we call them equites aurati for at their creations beside the sword and girdle guilt spurs were added for a matter of more ornament See the statute of Anno 8. H. 5 C. 3. M. Selden f. 317. and when a Knight doth commit any offence for which he is by the Law to suffer death The use hath bin in the beginning of this punishment to degrade and deprive him publikely of his Honour of Knighthood For it is but life lost or taken away Vide Mills fol. 81. by ungirding his Military girdle by taking away his sword his guilt Spurs cut off with a Hatchet his Gauntlets pluckt off from him and the schochean of his Arms reversed 4. E. 4. 20 Cambden 171 b. and of the degradation of a Knight which was Andrem Horkley under E. 2. who was a Scot born by that King created Earl of Carleile vide Selden his Titles of Honour fol. 337. And by the statute made Anno 24. H. 8. cap. 13. intituled An Act of Reformation of apparell It was permitted for Knights to wear in a Collar of Gold named a Collar of 55. Esses And although this dignity of Knighthood had its originall and was given to men of war yet in all successions of Ages and in all Nations the same also is bestowed on men of peace by Sovereign Kings that in severall Functions and places in the Common-weal be of singular desert wherby the service of the Common-weale at home is levelled and made equall with that abroad for as Tully said truly Parva sunt focis Arma risi est Consilium domi He that receiveth the Dignity of a Knight kneeleth down and the King slightly smiteth him upon the shoulder speaking these words unto him therwithall in French So is Chevalier a nome de dieu that is to say Be thou a Knight in the name of God and then afterwards therupon the King saith Avances Chevalier that is arise Sir Knight vide Hooker al. Vocrell his C. 10. fol. also Selden f. 37. who there speaketh of our Earl Marshal of England for making of Knights for a Knight is not made by Letters pattents or by the Kings Writs as are those of greater dignity but by the sword For this Honour is supposed to be given on the sudain and therfore it is commonly done only by the sword without any pattent but the King may by his Letters Pattenâ—s create a Knight Earls in ancient time had power in Knighthood M. Selden title Honors fol. 136. But now neither may the Prince nor any other of the Nobility make a Knight but only the King or his Lieutenant by Commission hereof vide Cook 6. part Dyer reports f. 74. b. No man is born a Knight Selden f. 3. 18 as he may be to titles of Honour Causa patet But a Knight may be made so soon as he is baptized as in that book is mentioned excepts Knights Barronets whose posterity doth receive that title by discent with some limitation as in the Kings Books therof may appear Note also in the said Titles of Honour fol. 318. and 313. the first Knight made in England With us in England there are divers sorts of Knights wherof Camden fol. 171. and Mills do write at large but my purpose is only to speak of one order of them amongst the Romanes there was but one Order of them And these were next in degree to the Senators themselves as with us they are to the Barons and they who simply without any addition be called Knights howsoever they are in Order ranked last yet by institution they be first and of greatest antiquity and the other attributes according to the severall inventions of particular Princes And I do not
not to have them learned in the Lawes nor to live by the practice thereof but onely upon their Fathers allowance vide Fortescue de landibus Anglorum cap. 49. But the Statute of An. 3 Iac. cap. 4. amongst other things it is enacted that if any Gentleman or Person of high degree shall hereafter goe or passe voluntarily out of this Realme to serve any forraine Prince State or Potentate before that hee or they shall become bounden with two sureties as shall bee allowed of the Officers by that act limited to take the said bond unto the King his Heires and Successours in the summe of twenty pounds of currant English money at the least with condition to the effect following hee shall bee a felon viz. That if the within Bounden c. shall not at any time then after bee reconciled to the Pope or Sea of Rome nor shall enter into or consent unto any practise plot or conspiracy whatsoever against the Kings Majesty his Heires and Successours or any of his or their estate or estates Realmes and Dominions but shall within convenient time after knowledge thereof had revealed and disclosed to the Kings Majesty his Heires and Successours or some of the Lords of his or their Privy Counsell all such practises plots and conspiracies and that then the said obligation to bee void c. Of Yeomen THe Yeomanry or Common people for they bee called of the Saxon word Zemen which doth signifie Common who have some lands of their owne to live upon for a carve of land or Plow land was in antient times of the yearely value of five Nobles and this was the living of a sober man or Yeoman Cookes 9. part fol. 124. b. But in our Lawes they are called Legales homâ—nes a word very familiar in writs and inquests and by divers Statutes it hath beene enacted that none should passe in any inquest unlesse they had fourty shillings freehold in yearely revenues which maketh if the most value were taken to the proportion of moneyes above six pounds of our currant money at this present Sir Thomas Smith fol 30. and by the Statute of 27. Eliz. cap. 6. Iurours must have 4. l. in lands In the end of the Statute 23. H. 6. cap. 15. concerning the election of Knights for the Parliament it is expressely provided that no man shall bee such Knight which standeth in the degree of a Yeoman It appeareth in Lamberts perambulation of Kent that this Saxon word Telphinorman was given to the Theine or Gentleman because his life was valued at twelve hundred shillings and in those dayes the lives of all sorts of men were rated at certaine summes of money Telphinorman to the Chorle or Yeoman because the price of his head was taxed at two hundred shillings which thing if it were expressely set forth in sundry old Lawes yet extant might well enough bee found in the Etimologie of the words themselves the one called a Twelve hund as if it were a twelfe hundred And in this estate they please themselves and joy exceedingly insomuch as a man may find sundry Yeomen although otherwise comparable for wealth with many of the Gentle sort that will not yet for that change their condition nor desire to bee apparelled with the title of Gentry Lamberts estaâ—e of Kent names the Yeomanry of Kent when a Yeoman of 1000. l. yearely revenues and refâ—sed any other superiour title but these are now no more heard of c. By the Common Law as may appeare in An. 1. E. 2. De militibus in An. 7. H. 6. 15. men that had lands of the yearely value of 28. l. were compâ—llable at the Kings pleasure to take upon them the order of Knight-hood and upon summons there came a Yeoman who might dispend 100. markes per annum and the Court was in doubt how they might put him of and at last hee was wayved in because hee did come the second day An. 7. H. 6. fol. 15. a. By this sort of men the triall of causes in the Countrey proceedeth ordinarily for of them there are greater number in England then in any other place and they also of a more plentifull livelyhood and therefore it cometh that men of this Countrey are more apt and fit to discerne in doubtfull causes of great examinations and trials then are men wholly given to moyling in the ground to whom the ruralâ— exercise engendreth rudenesse of wit and mind and many Franklins and Yeomen there are so neere adjoyning as you may make a Iury with little difficulty For there bee many of them which bee able to spend 100. l. a yeare vide Fortescue de landibus Anglorum c. As in ancient time the Senatours of Rome never elected a Censor and as with us in conserving of Nobility respect is had unto the Revenues by which their dignity and Nobility may bee supported and maintained Cookes 7. part 33. b. so the wisedome of this Realme hath of ancient provided that none shall passe upon Iuries for the trials of any matters reall or personall or upon any criminall cause but such as besides their moveables have lands of estate for life at the least to a competent value least for need and poverty such Iurours might easily bee corrupted and suborned Fortescue 56. b. And in all cases and causes the Law hath conceived a better opinion of those that have lands and tenements or otherwise are of worth in moveable goods presuming that such will commit or omit nothing that any way may bee prejudiciall to their estimations or which may endanger their estates then hath Labourers Artificers Retaylers or such like of whom Tully saith Nihil proficiunt in se admâ—dum mentiuntur and by divers Statutes certaine immunities are given to men of quality which are deemed to the vulgar sort of people read hereof amongst other in An. 1. Iac. cap. 127. By the Statute of 2. H. 4. cap. 21. amongst other things it is enacted that no Yeoman should take or weare any livery of any Lord upon paine of imprisonment and to make fine and ransome at the Kings will FINIS