by birth though they have no other Creation but shall not be partaker of these or other Priviledges incident to the Lords of the Parliament Thirdly Those that are Barons and of the Nobility of Scotland or Ireland if upon the like Offence committed in England they be apprehended in England they shall not have this Tryal by Peers no though they were born in England for they received their Dignity from a King of England of other Nations But if the King of England do at this day create one of his Subjects of Scotland or Ireland an Earl Viscount Baron or other Peer of this Realm or by his ordinary Writ of Summons under his Great Seal do call him to the Upper House of Parliament and assign him a place and to have Voice free amongst the Lords and Peers there assembled he shall be partaker with them in all priviledges And thus much concerning the restraint of the Priviledges in respect of the persons 39 Ed. 3. And touching the manner of proceeding it appeareth by the said Statute of Magna Charta chap. 29. That a Peer of the Realm shall be tryed by his Peers only in case where he is indicted at the King's Suit of Treason or Felony for the words of the Statute be Nec super eum ibimus c. But if any Appeal of Murther of Felony be sued by any common person against a Peer of the Realm he shall be tryed by common persons and not by his Peers And so was Fines Lord Dacres tryed in Appeal of Murther The Nobility of this Realm do enjoy this priviledge That they are not to be impannelled on any Jury or Inquest to make tryal or inquiry upon their Corporal Oaths between party and party for they may have a Writ for their Discharge to the Sheriff But it is a Rule in Law Vigilantibus non dormientibus subveniant jura For if the Sheriff have not received any such Writ and the Sheriff have returned any such Lord on Juries or in Assize c. and they thereupon do appear they shall be sworn if they do not appear they shall lose their Issues 35 Hen. 6. and in such case they must purchase a Writ out of the Chancery reciting their priviledges directed to the Justices before whom such Noble persons are so impannelled commanding to dismiss him or them that were so impannelled out of the said Pannel F.N.B. 165. This priviledge hath in two causes not been allowed or taken place 1. If the enquiry concern the King and the Common-wealth in any necessary and important degree or business of the Realm And therefore divers Barons of the Marshes of Wales were impannelled before the Bishop of Ely and other Commissioners of Oyer and Terminer to enquire of a notable outrage committed by Gilbert de Clare Earl of Glocester against Humphrey de Bohun Earl of Hereford and Essex and his Tenants in Wales in the Twelfth year of Edward the First where Iohn de Hastings Edmond de Mortimer Theobald Beardmoe and other Barons of the Marshes challenged their priviledges aforesaid and much insisted upon the same But it was afterwards answered by the Court as by the words in the Record appeareth The Barons aforesaid did persist in the Challenge and in the end both the said Earls between whom the said outrage had been perpetrated submitted themselves to the King's Grace and made their Fines Secondly This priviledge hath no place in case of necessity where the truth of the case cannot otherwise come to light for the words in the Writ in the Register are Nisi sua praesentia ob aliquam causam specialiter exigatur c. If any Nobleman do bring an Action of Debt upon Account in case where the Plaintiff is to be examined which is always intended to be upon Oath upon the truth of his cause by vertue of the Statute of the fifth of Henry the Fourth chap. 8. it shall suffice to examine his Attorney and not himself upon his Oath And this priviledge the Law hath given to the Nobility That they are not Arrested upon any Warrant of a Justice of Peace for their good behaviour or breach of Peace nor by a Supplicavit out of Chancery or from the King's Bench For such an Opinion hath the Law conceived of the peaceable disposition of Noblemen that it hath been thought enough to take their promise upon their Honour in that behalf And as in Civil Causes the like Rule doth the Court of Equity observe in Cases of Conscience for if the Defendant be a Peer of the Realm in the Star-Chamber or Court of Chancery a Subpaena shall not be awarded but a Letter from the Lord Chancellor or Lord Keeper in lieu thereof And if he do not appear no Attachment shall go out against him For in the Fourteenth year of Queen Elizabeth this Order and Rule was declared in the Parliament Chamber That an Attachment is not awarded by Common Law Custome or President against any Lord of Parliament And if he do appear and make his Bill of Complaint upon his Honour only he is not compelled to be sworn But by the Statute 5 Eliz. cap. 1. it is enacted That all Knights and Burgesses of Parliament shall take the Oath of Supremacy and so shall Citizens and Barons of the Cinque Ports being returned of the Parliament before they enter into the Parliament House which Oath shall be according to the tenor effect and form of the same as is set forth in the Statutue of 1 Eliz. Provided always that forasmuch as the Queens Majesty is otherwise sufficiently assured of the Faith and Loyalty of the Temporal Lords of her High Court of Parliament therefore this Act nor any thing therein contained shall not extend to compel any Temporal person of or above the Degree of a Baron of this Realm to take the said Oath nor to incur any penalty limited by the said Act for not taking the same If a Peer be sued in the Common Pleas in an Action of Debt or Trespass and Process be awarded by Capias or Exigit against him then he may sue out a Certiorari in the Chancery directed to the Justices of the Common Pleas testifying that he is a Peer of the Realm For unless the Court be certified by the King 's Writ out of the Chancery that the Defendant is a Peer of Parliament if a Capias or Exigit issue forth against him it is no Error neither is it punishable in the Sheriff his Bailiffs or Officers if they execute the said Process and arrest the body of such a Noble person for it appertaineth not to them to argue or dispute the Authority of the Court But if the Court be thereof certified as aforesaid they will award a Supersedeas which is in the Books of Entries in the Title of Error Sect. 20. And there are two Reasons or Causes wherefore no Capias or Exigit lieth against any Peer one because of the dignity of their persons and the other by intendment of Law
illis some Knights were returned upon every Venire Facias By the Statute of Magna Charta cap. 12. It is ordained that Assizes of Novel Disseison and Mortdancester should not be taken any where but within the Countries where they happen by the Justices of Assize and the Knights of the Shire vide Westminster 2. chap. 30. And by the Seven and twentieth of Edward the First chap. 30. de finibus levandis amongst other things it is enacted That for the utility of the Realm and the more assured conservation of the Peace the Justices assigned to take Assizes in all Shires where they take Assizes as it is ordained immediately after the Assizes taken in the Shires shall remain both together if they be Lay and if one of them be a Clerk then one of the most discreet Knights of the Shire being associated unto him that is a Lay-man by our Writ shall deliver the Goals of the Shires as well within the Liberties as without of all manner of Prisoners after the form of the Goal Delivery of those Shires beâ—ore time used Also in the Statute of Westminster 21. cap. 38. de non ponendis in Assizis Iuratis it is provided that the said Statute shall not extend to Grand Assizes in which it behoveth many times Knights to pass not resident in the County for the scarcity of Knights so that they have Lands in the Shire And by the Law Knights having Land may be returned upon Juries in ordinary Trials between party and party as other Freeholders may be And therefore in a Challenge to the great Assize under Edward the Third one was challenged pur ceo qu'il fait abaner or as the Abridgment hath it a Baronet but it was not allowed and the Reason is given Car s'il soit à Baner ne tient pas per Baronie il serra en l'assise Of the double parity of England that is of Barons and all Dignities above them being Peers of the Realm and all other under them are Peers amongst themselves for notwithstanding that Dignity of Knighthood they are reckoned amongst the Commons And we daily see that Knights do serve in Parliament as Members of the Commonalty Nevertheless the Sheriff in his discretion will not impannel Knights but in special and great Causes As in Cases of Indictments of a Peer of the Realm they are to be enquired and found by Knights and Esquires though their Trial shall be only by their Peers And in 38 Hen. 8. Henry Howard Earl of Surrey Son and Heir apparent of Thomas Duke of Norfolk was attainted of High Treason and was tried also by Knights Esquires and Gentlemen and not by Lords or Peers of the Realm because he was not of that Dignity by Creation Since the use of making every Earl first a Baron of some place which began as most Writers treat about the time of Henry the Eighth it hath been a Custome to style their Heirs apparent Lords and Barons with the Title of their Father's Barony when Viscounts or Baron's Heirs apparent are only styled Esquires but this is only a piece of Civility and of meer fashion yet it is allowed of in Heraldry with whom the Rule is That the eldest Son of every one of a created Degree is as of the next Degree under him which may be applied to Dukes Earls and the like But in Legal Proceedings they enjoy no such matter nor have by their being Heirs Apparent any Prerogative of the greater Nobillty And in case where a Peer of the Realm is party Plaintiff or Defendant in any Action or Suit if the Sheriff do not return one Knight at the least to be of the Jury the said Noble Person may Challenge and for that only cause quash the whole pannel By the Statute of Carlisle 15 Edw. 2. it was enacted That he who levied a Fine should appear in proper person to the intent that his Age Idiocy or other defect might be discovered by the Judges Nevertheless upon Impotency whereby he cannot come in Court two or one of the Justices by the consent of the rest of the Justices shall go unto him and take his Recognizance and if but one of them go he shall take a Knight with him and shall certifie it in the Bench of Record to the intent that all things incident to the fine be examined by them and then the fine may be levied But after this good Statute a worse Custom and Use hath come in place For by a Dedimus potestatem out of Chancery to one Knight and to a Justice of the Peace of the County in such cases is procured and directed to a Knight and two others who perhaps be neither Knights nor Justices but perhaps men of small estimation and unto two or three of them without saying Quorum the Knight shall be one and two of them without the Knight have taken the Recognizance of the Fine ibid. 101. b. But great prejudice this practise of omitting the interposing of the usual Service of Knights in this behalf hath been to many and scandalous to the Law of the Land they sometimes taking Recognizances of a Fine from a Feme Covert as if she were sole and many times acknowledged by Justices If a Tenant do lay an Essoin de morbo lecti he may have a Writ out of the Chancery to warrant it by which it shall be commanded to four Knights to view him and if they see him sick then they are to give him day to the end of a year and a day Note the Register fol. 177. b. Quod Coronator non elegatur nisi sit miles in c. juxta formam Statuti Westm. 1. cap. 10. It is a received Opinion that Knights are excused from attendance at Leets and Britton 29. 36. is cited to prove it And by a large understanding of the intent and meaning of the Statute of Marlbridge chap. 10. For the ancient Common Law had such respect to the Degree of Knighthood that they nor their eldest Sons were compelled to find Pledges in the Leet or Law-days for the Statute of Marlbridge aforesaid was not Introductiva novae Legis for it was before the Conquest And the Common Law is not by this Statute abridged And by the Book called the Mirror of Iustice mentioned in the Preface to Coke's ninth part it is said that Knights are excepted And so it appears that the practice was as well before as immediately after the making of that Statute of Marlbridge and Interpretatio Practica is a principal way and form of Interpretation of Laws The Lord Chancellor's Speech in the Case of Postnati fol. 58. And in Divinity Praxis sanctorum est interpretatio praeceptorum ibid. 66. But a Knight and all Superiors and Inferiors are bound by Law to attend the County or Sheriffs Court wherein he dwelleth and at his peril to take notice of the proceedings thereof For if a Man be Outlawed of Felony at a County Court and one of the same County not
Analogia Honorum OR A TREATISE OF Honour and Nobility According to the LAWS and CUSTOMES OF ENGLAND Collected out of the most Authentick Authors both Ancient and Modern In Two Parts THE FIRST Containing Honour Military and relateth to War THE SECOND Honour Civil and relateth to Court and City Illustrated with variety of SCULPTURES sutable to the several Subjects LONDON Printed by Tho. Roycroft Anno Dom. MDCLXXVII To the Right Noble Iames Duke of Monmouth and Buccleuth Earle of Doncaster and Dâ— Lord Scott of Askdale Tendale and Wichester Lord high Chamberlaine of Scotland cheifeâ—y and Iustice in Eyre of all his Matys Parks Chaces and Forests on the South side of Trent L d Lâ—â— of the County and Steward of the Towne of Stafford Lord Leivtenant of the East Rideing of York shire Governor of the Towne and Citadel of Kingston upon Hull Chancellor of â— University of Cambridge Master of the Horse to his Maty Captaine of his Matys Guard of Hâ—â— Knight of the Garter Captaine Generall of his Matys land Forces and one of â— Lords of his Matys most Honourable privy Councell c a. This Plate with the Treatise of Honor Military and Civill is in all Humility dedicated to your Grace by mâ— your Graces most Submissive Servant Richard Blome HONI SOIT QVI MAL Y PENSE THE FIRST PART OR Honour Military CHAP. I. ALL Honours may not improperly be said to receive their Birth either from the City Court or Camp which of all is esteemed the most worthy and honourable raising some to Imperial and Princely Dignities and disthroning others And in all Kingdoms even amongst the barbarous Americans War hath ever been and yet is held in high esteem and of great Importance as well for the preservation of their Laws and Rights as for the defence of their Dominions for which War is permitted by the Laws of God is taught by the Laws of Nature and commanded by the Laws of Nations And to excite men to valour and noble Atchievments Reward or Honours is conferred upon such that merits the same according to their Deserts for the defence of holy Church their King and Country War being therefore of such concern it behoveth every prudent Prince for the welfare of his People to be always prepared for Peace or War either Offensive or Defensive both for Forreign Invasion or the suppressing Domestick Insurrections wherefore it hath been found expedient to joyn good Laws the Friends of Peace and Rest unto Arms War being always accompanied with men of audacious and furious Spirits Iustinianus for the uniting of Laws and Arms appointed one Officer called a Praetor to command both Martially and Civilly which Name the Romans continued for their General of War and by his Office had Authority both Martial and Civil By which it appears that War cannot endure without the assistance of Law and wise men in former Ages did hold that Prudence and Power ought not to be separated of which Opinion was Horace saying Vis expers consilii mole ruit sua Likewise for the same reason learned Writers were induced to commend valiant Captains and wise Counsellors as it were joyntly and in one rank for with Simonides they joyned Pausanias with Craesus Solon and with Pericles Anaxagoras Of War and the Causes thereof DIscord is common to all men and that occasioned either by Revenge for Injuries done out of covetousness in gaining that which belongs to others for ambition in gainning Fame by noble Victories or such like Reasons and this maketh one City to wage war against another one Province to invade another and whole Kingdoms to oppress one another even to a Conquest if they can Aristotle proveth that some men by nature are born to Command and others to Obey by which it appears that War is necessary as well to compel those to Obedience as the others to hold their Authority The Romans did sometimes judge it convenient to make War only to train up their Youth fit for Service and to keep them from idleness which breedeth Intemperance and Dishonesty And by Action Princes that are martially inclined have not only gained Renown but also much enlarged their Dominions Yet I am of the Opinion That War ought not to be made without just cause and when the Enemy cannot be perswaded to reason by Embassadors prudent Princes and Commanders do not wage War unadvisedly and when they do they should follow the Example of Trajanus who observed these Cautions to be careful to supply the places of his slain Souldiers to repress the enemies pride and according to Military Discipline constrain Mutiners to Obedience and Order Of Souldiers SOuldiers or men professing Arms according to Vlpianus were called Milites à malitia id est duritia that is were so named in respect of the hardness and danger they endure in defence of other people or because they keep off the injuries which enemies do offer He that desireth to enjoy the Honour belonging to Arms ought first to prove himself a Souldier which by the Civil Laws may be done three ways the first is by Certificate from the Captain or Officers secondly he ought to make proof of his experience and manhood in Martial Affairs and thirdly to be registred in the List of received Souldiers and none other properly ought to be termed Souldiers By ancient Custom Souldiers always took an Oath not to abandon their Captain or Camp not to commit Treason nor consult with one another privately to cause mutining and the like Martianus the great Doctor did reject Bondmen as persons unfit and unworthy to be called Souldiers and no person that hath committed any infamous Crime of which he is convicted ought afterwards to bear Arms so honourable is the Name and Dignity of a Souldier The persons excused from bearing Arms are Priests and all in Holy Orders all Graduates in Schools all men above the Age of 60 years and those under the Age of 17 years Those Souldiers that had long served the Romans either in their Legion or elsewhere and deported themselves obediently to their Officers and honestly to all men were called Veterani and had great favour shewed them and that when any Veteran had honestly served them the space of twenty years he was then called Emeritus and might have his dismission to end his days in peace and quietness with the enjoyment of divers Immunities besides signal marks of Honour according to their merit which was a great encouragement to Youth to be trained up in Military Service which oft-times they made use of appointing Tutors to instruct them therein and these they called Tyrones And as on the one hand the Romans rewarded them for good Service so on the other they inflicted punishments according to the heinousness of the Offence as for Treason Disobedience Abandoning their Colours and Assisting the Enemy also for Theft Murther and Cowardise which they esteemed most vile The experience of which was seen when Spractacus defeated the Romans conducted by
Realm to do Justice shew Mercy keep Peace and Unity c. The King is enabled to perform this great and weighty Office by certain extraordinary powers and priviledges which he holds by the Law of Nations by the Common Law of England or by Statutes The Regalia were anciently called Sacra Sacrorum as his Lands are called in Law Patrimoniâ—â— Sâ—câ—â—â— now commonly Royal Prerogaâ—ives The King being Principium Capâ—â— â—inis Parliâ—menti may of his meer will and pleasure Convoke Adjourn Remove and Dissolve Parliaments He may to any Bill that is passed by both Houses of Parliament refuse to give his Royal Assent without rendring a Reason and without his Assent a Bill is as a â—ody without a Soul He may at his pleasure encrease the number of the Members of both Houses by creating more Peers of the Realm and besâ—owing priviledges upon any other Towns to send Burgelles by Writ to Parliament and he may refuse to send his Writ to some others that have sate in former Parliaments He hath alone the choice and nomination of all Commanders and Officers for Land and Sea-service the choice and election of all Magistrates Counsellors and Officers of State of all Bishops and other Ecclesiastick Dignities also the bestowing and conferring of Honours and the power of determining Rewards and Punishments By Letters Patent his Majesty may erect new Counties Universities Bishopricks Cities Boroughs Colledges Hospitals Schools Fairs Markets Courts of Judicature Forests Chases Free Warrens c. The King by his Prerogative hath power to enfranchise an Alien and make him a Denison whereby he is enabled to purchase Lands and Houses and to bear Offices He hath the power to grant Letters of Mart or Reprisal to grant safe Conducts c. He hath at all times had the right of Purveyance or Preemption of all sorts of Victuals within the Verge viz. Twelve miles round of the Court and to take Horses Carts Ships or Boats for the Carriage of his Goods at reasonable rates Also by Proclamation to set reasonable rates and prices upon Flesh Fish Fowl Oats Hay c. sold within the limits of the Verge of the Court in the time of his Progress Debts due to the King are in the first place to be satisfied in case of Executorship and Administratorship and until the King's Debts be satisfied he may protect the Debtor from the Arrest of other Creditors He may disâ—rein for the whole Rent upon one Tenant that holdeth not the whole Land He may require the Ancestors Debt of the Heir though not especially bound He is not obliged to demand his Rent according to the Custome of Landlords He may distrein where he pleaseth and sue in any of his Courts No Proclamation can be made but by the King No protection for a Defendant to obstruct the course of the Law against him if he be not one of his Majesties Menial Servants In case of loss by Fire or otherwise his Majesty granteth Patents to receive the Charitable Benevolences of the people No Forest Chase or Park to be made nor Castle Fort or Tower to be built without his Majesties especial Licence Where the King hath granted a Fair with Toll to be paid yet his Goods shall be there exempted from the said Duties of Toll His Servants in Ordinary are priviledged from serving in any Offices that require their Attendance as Sheriff Constable Church-warden or the like All Receivers of Money for the King or Accomptants to him for any of his Revenues their Persons Lands Goods Heirs Executors and Administrators are at all times chargeable for the same for Nullum tempus occurrit Regi His Debtor hath a kind of Prerogative Remedy by a Quo minus in the Exchequer against all other Debtors or against whom they have any cause of personal Action supposing that he is thereby disabled to pay the King and in this Suit the King's Debtor being Plaintiff hath some priviledges above others In doubtful Cases semper praesumitur pro Rege no Statute restraineth the King except he be especially named therein The quality of his Person alters the descent of Gavelkind the Rules of joynt Tenancy No Estoppel can bind him nor Judgment final in a Writ of Right Judgments entred against the King's Title are entred with Salvo Iure Domini Regis That if at any time the King's Counsel at Law can make out his Title better that Jugment shall not prejudice him which is not permitted the Subject The King by his Prerogative may demand reasonable Ayd-money of his Subjects for the Knighting his Eldest Son at the Age of Fifteen years and to marry his eldest Daughter at the Age of Seven years which Ayd is 20 s. for every Knights Fee and as much for every 20 l. per annum in Soccage Moreover if the King be taken prisoner Ayd-money is to be paid by the Subjects for his Redemption The King upon reasonable Causes him thereunto moving may protect any of his Subjects from Suits of Law c. In all Cases where the King is party his Officers with an Arrest by force of a Process at Law may enter and if any entrance be denied may break open the House of any man by force A Benefice or Spiritual Living is not full against the King by Institution only without Induction although it be so against a Subject None but the King can hold Plea of false Judgments in the Courts of his Tenants The King by his Prerogative is Summus Regui Custos and hath the Custody of the Persons and Estates of such as for want of understanding cannot govern themselves or serve the King that of Ideots to his own use and that of Lunaticks to the use of the next Heir So the Custody or Wardships of all such Infants whose Ancestors held their Lands by Tenure in Capite or Knights Service were ever since the Conquest in the King to the great honour and benefit of the King and Kingdom But abuses which too often happened made the people complain thereof which was the cause of its laying aside His Majesty is Vlâ—imus Haeres Regni and is as the great Ocean is of small Rivers the Receptacle of all Estates for want of Heirs or by Forfeiture Revert or Escheat to the King All Spiritual Benefices for want of presentation in due time by the Bishop are elapsed to the King All Treasure Trove that is Money or Gold and Silver plate or Bullion found and the owners unknown belongs to the King So doth all Waifs Strays Wrecks not granted away by him or any former Kings All waste Ground or Land recovered from the Sea All Lands of Aliens dying before Naturalization or Denization and all other things whereof the property is not known All Gold and Silver Mines in whose Ground soever they are found Royal Fish as Whales Sturgeons Dolphins c. Royal Fowl as Swans not mark't and swimming at Liberty on the River belong to the King In the Church the King's prerogative and power is
Nobleman and his Progenitors have for a long time been called to Parliament and be a Baron either by Tenure or Writ and have had in regard thereof a place certain in Parliament if afterwards the said Nobleman should be created a Baron of that Barony and by the same name by Letters Patents whether shall he and his Heirs retain his old place in Parliament which he had according to his former Dignity or whether shall he lose his old place and take a new one according to the time of his Creation Answer The Case of the Lord Delaware lately erected a Resolution somewhat answerable to this Question Thomas Delaware in the third of Edward the Sixth being in some displeasure with William West his Heir and Nephew who was Father to Thomas late Lord Delaware and Grandfather to Henry Lord Delaware that Nevis procured by Act of Parliament by which the said William West was during his natural life only clearly disabled to claim demand or have any manner of Right Title or Interest by Descent Remainder or otherwise in or to the Mannors Lands Tenements or Hereditaments Title and Dignity of Thomas Lord Delaware his Uncle c. After the said Thomas Delaware died and the said William West was in the time of Queen Mary attainted of Treason by Verdict but pardoned by the said Queen and afterwards by Parliament in the time of Queen Elixabeth was restored and in the fourth year of her Reign was created Lord Delaware by Patent and took place in Parliament accordingly for that by the said Act of Parliament of Edward the Sixth he was excluded to challenge the former ancient Barony and after he died Now whether Thomas Delaware should take his place according to the ancient Barony by Writ or according to his Father's Creation by Patent was the Question The Opinions of the late Queens Council being his Majestie 's Attorney General and Solicitor were That the acceptance of the new Creation by the said William West could not extinguish the ancient Dignity for that he had not the ancient Dignity in him at that time of his Creation but the Dignity was by the Act of Parliament 3 Edw. 6. in the ballance of suspence or consideration of Law and he thereby utterly disabled to have the same during his life only so as other acceptance could not extinguish that Dignity which he then had not nor could not conclude his Heir who was not disabled by the Parliament 3 Edw. 6. to claim the ancient Barony which Opinion of theirs was seen and allowed by the then Chief Justice of England and Lord Chief Baron and so signified to the Lord Keeper But this to be noted by the Reasons made for the said Resolution though if the said Sir William West had been Baron and entituled and in possession of the ancient Dignity when he accepted the ancient Creation the Law perchance might have been otherwise but that remains as yet unresolved Nevertheless the Rule is Eodem modo quo quid constituitur dissolvitur But by a Grant which is but a matter of Fact a man cannot transfer his Title of Honour And thus much concerning the Degrees of Barons within this Realm upon this occasion for the better understanding and direction of that which followeth to be handled And in this place I think it not impertinent to mention one Case which I met with in our Books of Common Law concerning the Descent of a Title of Honour whereof the Ancestor had Estate in Feesimple there is a Maxim in the Law Possessio fratris in feodo facit sororemesse haeredem But if a man by any of the three means aforesaid be created into a Title of Dignity to him and his Heirs for ever and so have Issue by one wife a Son and a Daughter and hath also a Son by a second wife afterwards the Father dieth and his eldest Son entreth into all his Father's Inheritances and also enjoyeth the Titles and Dignities which his Father had but dieth without Issue In this Case the Dignity shall descend upon the younger Son though he be but of the half blood to him that last enjoyed that Name and Title of descent and shall not descend to his Sister of the whole blood And yet in this case he shall only be her Brother's Heir of all his Feesimple Lands and the reason thereof is because possessio fratris is the name and sole cause which may give Title to her his Sister which faileth in this case of Dignity for it cannot be said that her elder brother was in possession of his Title of Honour no more than of his blood so as neither by his own act nor any act to be done by any other did gain more actual possession if so it may be termed then by the Law did descend to him and therefore the younger brother may well by the Law make himself Heir unto his Father of the Honour that he cannot be heir unto his brother So that this word Possession which is no other than pedis positio extendeth only unto such things of which a man may by hâ—s entry or other act be possessed and doth require actual possession Coke's third part 92. Having thus much treated concerning the Creations and other things incident to the degrees of Nobility I cannot omit some things concerning the sufficiency and ability of Estate which the Law doth require to be in every of them according to their several Dignities The Common Law which always will decorum and conveniency be observed considering the Charges and Dignities appertaining to these Degrees and Dignities being Offices of principal Service to the King and Realm both in War and Peace hath ordered that each of them ought to have a convenient Portion and Inheritance in Land to support the said Dignity which Supplies are as Sinews conjoyned in the same For in Vertue and Riches as Aristotle confesseth all the old Nobility consisted and which two Properties maketh a good Complement for utilior est sapientia cum divitiis conjuncta Therefore a Knight's Fee which he ought to have is Twenty pounds Land by the year a Baron's thirteen Knights Fees and a quarter and an Earl's twenty Knights Fees For always the fourth part of each Revenues which is by the Law held requisite for the Dignity shall be paid to the King for the Relief As for Example the Relief of a Knight is five pounds which is the one fourth of his Revenue according to the Statute of the first of Edward the Second The Relief of a Baron is One hundred Marks which is also the fourth part of his Revenue And the Relief of an Earl is One hundred pounds alâ—o the fourth part of his Revenue And it appears by the Records of the Exchequer that the Relief of a Duke amounteth unto Three hundred pounds And this is the reason in our Books that every of the Nobility is presumed in the Law to have sufficient Freehold ad sustinendum nomen onus And to what value
but afterwards the Lord upon such dislike or other cause do discharge any of them from their attendance or service the Lord in this case cannot retain other thereby to give them priviledge during the life of them so retained and discharged And the reason thereof is because the first Chaplains were lawfully retained and by virtue thereof during their lives might purchase Dispensations to have advantage according to the Statute and therefore if the discharge of their service and attendance might give liberty to the Lord to retain others by such means he might advance Chaplains without number by which the Statute might be defrauded And the said Statute must be strictly construed Non-residents Pluralities as a thing prejudicial to the service of God and the ordinary instruction of the people of God By the Statute 3 Hen. 7. cap. 4. it is enactect as followeth Forasmuch as by quarrels made to such as have been in great Authority Office and of Council with the King 's of this Realm hath ensued the destruction of the Kings and therefore the undoing of this Realm so as it hath evidently appeared when the compassing of the death of such as were of the King 's true Subjects was had the destruction of the Prince was imagined thereby and for the most part it hath grown and been occasioned by malice of the King 's own Houshold Servants and for that by the Laws of this Land if actual deeds were not there was no remedy for such false compassing imaginations and confederacies had against any Lord or any of the King's Council or great Officers in his Houshold and so great inconveniences did ensue because such ungodly demeanours were not strictly punished before that any actual deed was done for remedy whereof it was by the said Statute ordained That the Steward Treasurer or Comptroller of the King's Houshold for the time being or one of them shall have full authority to enquire by twelve discreet persons of the Check Roll of the King 's honourable Houshold if any person admitted and sworn the King's Servant and his name put in the Check Roll in any quality or degree whatsoever under the state of a Lord do make any Confederacies or Conspiracies with any person or persons to destroy or murther the King or any Lord of this Realm or any other person sworn to the King's Council Steward Treasurer or Comptroller of the King's Houshold that if it be found before the said Steward for the time being by the said twelve men that any such of the King's Servants as aforesaid hath confederated or conspired as abovesaid that he so found by the enquiry be put thereupon to answer and the Steward Treasurer or Comptroller or two of them have power to determine the said matter according to Law And if he put in trial that then he be tried by Oath of twelve discreet men of the same Houshold and that such Misdoers have no challenge but for maliace And if such Misdoers be found Guilty by confession or otherwise that the said Offence is adjudged Felony and they to have Judgment and Execution as Felons attainted ought to have by the Common Law By the Statute made in the second of King Henry the First cap. 8. Authority is given to the Sheriffs and other the King's Justices for the better suppressing of Riots to raise posse Comitatus and the same liberty doth in Common Law guide in many other cases Nevertheless the Sheriff may not by such Authority command the person of any Nobleman to attend the Service But if the Sheriff upon a Supplicavit against a Nobleman in that case do return that he is so puissant that he cannot nor dare not arrest him the Sheriff shall be grievously amerced for such his return For by the Writ under the Great Seal of England the King's Command is to all Archbishops Bishops Earls Counts and Barons and to all Leigemen of the County to be aiding unto him in that which to his Office appertaineth and therefore no person whatsoever can respit the execution of the said Writ of the King 's Also the Sheriff at his discretion may levy three hundred men if need be to aid him in that behalf The words of the great Charter of the Forest in the eleventh Chapter are as followeth To every Archbishop Bishop Earl or Baron coming to us and passing by our Forest it shall be lawful for him to take one Beast or two by the view of the Forest if he be present or else he shall cause one to blow a Horn for him that he seem not to steal our Deer Although the Statute doth speak but of Bishops Earls and Barons yet if a Duke Marquiss or Viscount which are Lords of the Parliament be coming towards the King by his command they also shall have the benefit of this Article So if the King send to any of the Lords aforesaid to come to his Parliament or send for him by Writ of Subpoena to appear in the Chancery or by Privy Seal to appear before his Council or send for him by Letters Missive or by Messenger or Serjeant at Arms in all these cases he shall have the benefit of this Statute because that they come at the King's command The same Law is if a Scire Facias go out of the Chancery or Kings Bench to a Lord of Parliament But if such Process go forth against a Lord to appear before the Justices of the Common Pleas or the Barons of the Exchequer and he cometh upon the same he shall not have the benefit of the Statute for he doth not come unto the King and the words of the Statute are Veniens ad nos And all the Process which are made out of the Chancery and King's Bench are Quod sit coram nobis and so are the Process out of the Star-Chamber Also Lords which come to visit the new King after the death of his Father though not sent for shall have the same priviledge And so that this Statute is a Warrant dormant to such Lords which also is to be understood as well of their returning homeward as of their coming to the King And note that this Statute doth extend to give Licence to kill or hunt in the King's Parks though the Letter of the Statute be Transiens per Forestam nostram The Oath of Supremacy is not imposed on the Peers of the Realm A Peer shall for his first Offence of Felony though he cannot read have the benefit of his Clergy and without burning If any person shall divulge false and scandalous Reports of any Lord of Parliament the Offender is to be imprisoned until he bring forth the Author In personal Actions the Plaintiff may pray a day of Grace but against a Lord of Parliament it shall not be allowed him It is Actionable for any to deface the Coat Armour c. of any Nobleman or Gentleman that is placed in a Church or Window Certain Cases wherein a Lord of the Parliament hath no
it goeth by Seniority The Opinion of some men lately hath been That Knights Lieutenants that is to say such Knights as either have been Ambassadors in Foreign Parts or Judges within the Realm may and ought to have during their lives precedency above men of their own rank after their Offices expire and sub Iudice his est not determined by Judgment But admitting it so to be by way of Argument in that case yet the Heralds do deny that priviledge to the Lord Mayor and Aldermen of London or Justices of the Peace who have their limited Jurisdiction of Magistracy confined them but the former are generally Magistrates throughout the Realm and their employment concerneth the whole Commonwealth and having the publick Justice and Honour of the whole Estate committed unto them do more meritoriously draw from thence a great respect of Honour according to the generality of their Administration and Employments which an inferiour and more conâ—â—ned Magistrate cannot have The name of a Knight is a name of Dignity and a Degree as is the name of Duke Earl c. and in all Actions he shall be slyled Knight otherwise the Writ shall abate A Knight also must be named by both his Chriâ—tian and Surnames as Sir A. B. Knight But those Degrees honourable that are made by Patent may be named only by their Christian Names and by their Title of Honour as Gilbert Earl of Shrewsbury and that for two causes First because of their solemn Creations nomen dicitur à noscendo Secondly there is but one part of that Title of Honour within England and therefore it is certain what person he is but otherwise of Knights as it is certainly known in the 8 Edw. 4.24 a. And Prisot Chief Justice saith in the 32 Hen. 6. 26. b. That if an Esquire be made a Knight he loseth his Name of Esquire but though a Knight be made a Nobleman or of any higher Degree he doth still retain the name of Knight and so ought to be styled in all Writs Also if a man do recover in an Action by the Name of Iohn Stiles Esq and afterwards be made a Knight he must sue his Scire Facias by the Name of Knight And this name shall not die with him for if they were bound in an Obligation by the Name of Gentlemen or Esquires and afterwards one is made a Knight and dieth the Plaintiff in the Action to be brought against his Executors must name him Knight otherwise the Writ shall abate If a Grant be made to H. D Knight when he is not a Knight it is a void Grant but if it be a Feoffment with Livery the Livery maketh it good If the Plaintiff or Demandant do in his Writ name the Defendant or Tenant Esquire when he is a Knight the Writ shall not only abate but also the Plaintiff may not have another Writ by Iourneys accompt But by the Statute made 1 Edw. 6. chap. 7. it is amongst other things enacted That albeit any person or persons being Justices of Assize Justices of Goal-delivery or Justices of the Peace within any of the King's Dominions or by any other of the King's Commissions whatsoever shall have the fortune to be made or created Duke Archbishop Marquess Earl Viscount Bishop Baron Knight Justice of the one Bench or of the other Serjeant at Law or Sheriff yet that notwithstanding he and they shall remain Justices and Commissioners and have full power and authority to execute the same in like manner and form as he or they might or ought to have done before the same By the Satute of 1 Hen. 5. chap. 5. it is enacted as followeth That every Writ Original of Actions personal Appeals and Indictments and in which an Exigit shall be awarded to the names of the Defendants in such Writs Oginal Appeals and Indictments shall be made the Additions of their Estate Degrees c. And a little after it is provided That if the said Writs of Actions Personal be not accordding to the Record and Deed by the Surplusage of the Additions aforesaid that for this cause they are not Iohn Sâ—iles Gent. is bound by Obligation to one W. B. the Obligor is afterwards made Knight the Bond is forfeited W. B. by his Attorney draweth a Note or Title for an Original according to the Defendants Degree although it varies from the Original Specialty as it ought to be made by the Statute But the Cursitor mistaking did make the Original only according to such Addition as was specified in the Obligation omitting his Degree or Dignity and the Entry of the Capias alias pluris was according to the said Original But in the Exigit and Proclamation and Entry of it the Defendant was named according to his Degree of Dignity upon a Writ of Error after a Judgment doubt was If this might be amended in another Court than where the Original was mâde and at the last it was resolved by all the Court That the Record should be amended by the Cursitor and made according to the Note and Title delivered unto him by the Attorney It appeareth in our Books of Law that the highest and lowest Dignities are universal for as if a King of a Foreign Nation come into England by his Majestie 's leave as it ought to be in this case he shall sue and be sued by the Name of a King So shall a Knight sue or he sued by the name of a Knight wheresoever he received that Degree of Honour But otherwise it is as if a Duke Marquess Earl or other Title of Honour given by any Foreign King or Emperor yea although the King by his Letters Patents of safe Conduct do name him Duke or by what other Foreign Title of Dignity he hath For Experience teacheth that Kings joyned in League together by a certain mutual and as it were a natural power of Monarchs according to the Law of Nations have admitted one anothers Servants Subjects and Ambassadors graced with the Title of Knighthood Therefore though a Knight receive his Dignity of a Foreign Prince he is so to be stiled in all Legal Proceedings within England And Kings were wont to send their Sons unto their Neighbour Princes to receive Knighthood at their hands thinking that it was more honourable to take Arms of some other leâ—t affection might seem to prevent Judgment when the Father gave them that Honour Thus our King Henry the Second sent unto David King of Scots and Malcombe King of Scots unto our Henry the Second and our Edward the First unto the King of Castile to take of them Military Arms For these terms and phrases they used in that Age for the Creation of a Knight And Knights in all Foreign Countries have ever place and precedency according to their Seniority of being Knighted which priviledge is denied to Noblemen for be they never so ancient in Foreign Countries they shall go below as Puisnes The Degree of Knighthood is not only a Dignity and Honour
knowing of the Felony doth receive him he is Accessory Also when the King doth Summon his Parliament Writs shall be sent to the Sheriff to make choice of Knights of every Shire in this form Rex Vicecom N. Salutem quia de avisamento asseâ—su nostri Concilii pro quibusdam arduis urgentibus negotiis nos statum defensionem Regni nostri Angliae Ecclesiae Anglicanae concernentibus quoddam Parliamentum nostrum apud Civitatem nostram Westm. duodecimo die Novembris proxime futuro teneri ordinavimus ibidem cum Praelatis magnatibus proceribus dicti Regni nostri colloquium habere tractare tibi praecipimus firmiter injungentes quod facta Proclamatione in prox Comit. tuo post receptionem hujus brevis nostri tenendi die loco praed duos Milites gladiis cinctos Magisidouers Discretos Com. praed c. electionem partes sub sigillo tuo sub sigillis eorum qui electioni illi interfuerunt nobis in Cancellaria nostra ad dictum diem locum certifices indilate See the Statute 23 Hen. 6. cap. 15. where amongst other things it is enacted That the Knights of the Shires for Parliaments hereafter to be chosen shall be notable Knights of the same Counties for the which they shall be chosen or else such notable Esquires or Gentlemen being of the same Counties as shall be able to be Knights Peers of the Realm are by intendment of Law sufficient of Freehold and that is one of the Reasons wherefore no Capias or Exigit liethâ— against them for Debt or Trespass But the Law hath not that Opinion of the Knights sufficiency of Freehold for he may be a Knight without Land therefore and then he is not to be returned of any Jury or Inquest howsoever he may be worthy and sufficient to serve the Commonwealth in Marshal Affairs The Wives and Widows of Knights in Legal Proceedings and in Courts of Justice have not the Title of Lady as the Wives or Widows of Noblemen have yet by the Courtesie of England that Title is given them And if in any action they be not called Ladies for that cause the Writ shall not abate for that Surplusage because Domina is general to Women as Domini to Men. So where Women after Fourteen years of Age are called Dominae for Ladies or Dames and with us anciently marriageable Women were called Dominae and in our old English Leets Dames First Dominae is often used for Women generally as a special Honour for that Sex being not out of fashion at this day nor with the French as also amongst the Italians Domina for them is familiar But if she be named Comitessa or Baronessa whereas she is no Countess or Baroness in Law then without question the naming of her so shall abate the Writ By the Statute of Magna Charta chap. 21. Knights are freed from Cart-taking that no Demesne Cart of them shall be taken By the Statute 1 Iacobi cap. 27. it seemeth that Knights Sons may keep Greyhounds and Setting-Dogs and Nets to take Pheasants and Partridges in though they cannot expend Ten pounds per Annum nor be worth Two hundred pounds for by the express words of the Statute all the Sons of Knights are excepted Observations concerning Knights Batchelors A Baronet cannot claim the Priviledge that Knights have from Cart-taking by Magna Charta 23. A Baronet's Son cannot keep a Grey-hound c. because he is not within the Statute of 1 Iac. 27. unless he hath Ten pounds per Annum tamen quâ—re See the said Statute and Statute 22 23 Car. 2. Quaere whether the Baronets Addition doth abate any Action If one be Knighted in the life time of his Father it frees him from Wardship but contra of a Baronet Knights are excused from attendance at Leets which Baronets are not Note That by the Statute 12 Car. 2. chap. 24. the Court of Wards Tenures in Capite Liveries Ouster le maines and other dependance upon the Court is taken away and then was repealed the Statute 32 Hen. 8. chap. 6. 33 Car. 22. A Knight Batchelor is a Title as before noted borrowed from Horsmanship and therefore ought to be represented by the Efâ—igies of a Captain of a Troop of Horse I shall here set down the manner of making Knights about the year of Christ 500 near which time King Arthur Reigned in England as I find it in Sir William Segar's Book of Honour Military and Civil page 53. where he saith That a Prince being minded to make a Knight commanded a Stage or Scaffold to be erected in some Cathedral Church in his Kingdom or some spacious place near unto it to which place the Gentleman was brought to receive that Honour and being come was forthwith placed on a silver Chair adorned with green Silk Then it was demanded of him if he were of a healthy Body and able to undergo the Travel required in a Souldier also whether he were a man of honest conversation and what credible Witnesses he could produce to affirm the same Then the Bishop or chief Prelate of the Church took the Bible and holding it open before the Knight in presence of the King and all others spake these words Sir you that desire to receive the Order of Knighthood swear before God and by this Holy Book that you shall not fight against this mighty and excellent Prince that now bestoweth the Order of Knighthood upon you unless you shall be commanded so to do in the service of your own King for in that case having first yielded up the Collar Device and other Ensigns of Honour now received it shall be lawful for you to serve against him without reproach or offence to all other Companions in Arms. But otherwise doing you shall incur Infamy and being taken in War shall be subject to the pains of death You shall also swear with all your force and power to maintain and defend all Ladies Gentlewomen Widows Orphans and distressed Women and you shall shun no adventure of your person in any War wherein you shall happen to be My Author further saith That this Oath being taken two of the chief Lords led him to the King who presently drew forth his Sword and laid it upon his Head saying God and St. George or what other Saint the King pleaseth to name make thee a good Knight Then came to the Knight seven Noble Ladies attired in white and begirt a Sword unto his side which being done four Honourable Knights put on his Spurs These Ceremonies being past the Queen took him by the right Arm and a Dutchess by the left and led him to a rich Seat placed on an Ascent where they seated him the King sitting on his right hand and the Queen on his left then the Lords and Ladies also sate down upon other Seats three Descents under the King And being all thus seated they were entertained with a Delicate Banquet or Collation and so the
this Civil Dignity they have three Laws The first Ius agnitionis the right or law of descent for the kindred of the Father's side The second Ius Stirpis for the Family in general The third Ius Gentilitatis a law for the descent in Noble Families which Tully esteemed most excellent by which Law a Gentleman of Blood and Coat-Armour perfectly possessing Vertue was only priviledged To make that perfection in Blood a Lineal Descent from Atavus Proavus Avus and Pater on the Fathers side was required and as much on his Mothers line than he is not only a Gentleman of perfect Blood but of his Ancestors too The neglect of which Laws hath introduced other sorts of Gentleman viz. men that assume that Dignity but are neither so by Blood nor Coat-Armour which style only hurries them to an unruly pride which indeed is but rude and false honour termed by Sir Iohn Ferne Apocriphate and debarred of all priviledge of Gentility These Gentlemen nomine non re saith he are the Students of Law Grooms of his Majesties Palace Sons of Churls made Priests or Canons c. or such as have received Degrees in Schools or born Office in the City by which they are styled Gentlemen yet have they no right to Coat-Armour by reason thereof As to the Student of the Law Sir I. Ferne allows him the best aâ—â—urance of his title of Gentleman of all these irregular Gentlemen as he terms them because he is named in some Acts of Parliament yet he saith he is also debarred of all honour and priviledge by the Law of Arms. And anciently none were admitted into the Inns oâ— Court as before noted but such as were Gentlemâ—◠〈◊〉 Blood be their merits never so great â—or were the Church Dignities and Preferments bestowed indifferently amongst the Vulgar The Jews confined their Prieâ—â—hood to a Family but Ieroboam debased it in his Kingdom by preferring the basest of his people to the best of duties The Russians and some other Nations admit none to the study of the Law but Gentlemens younger Sons The decayed Families in France are supported and receive new life from the Court Camp Law and Ecclesiastical Preferments take the most solemn and serious who contemn the World if such are wanting to fill up their Vacancies the Ingeniouser sort of the Plebeans are admitted by which means their Church and State is in eâ—â—eem and reverence being filled most commonly with the best Blood and Noblest by Birth amongst them whereas with us every Clown that can spare but mony to bring up his Son â—or any of those Studies bereaves the Gentry of those Benefices and robs them of their support which grand abuse is the cause of the general Corruption in the State Civil and Ecclesiastick whereas were this preferment made peculiar to the Gentry they would stand more upon their Honour and live without being a Burthen to their Relations The Atchievement of a Gentleman hath no difference with that of an Esquire both their Helmets being close and sideways OF YEOMEN CHAP. XXVII THE Yeomen or Common People for so are they called of the Saxon word Zemen which signifies Common who have some Lands of their own to live upon For a Carn of Land or a Plough Land was in ancient time of the yearly value of five Nobles and this was the Living of a Stokeman or Yeoman And in our Law they are called Legalâ— homines a word familiar in Writs and Inquests And by divers Statutes it hath been enacted That none shall pass in any Inquest unless they had forty shillings Free-hold in yearly Revenue which maketh if the most value were taken to the proportion of moneys above Sixteen pounds of currant money at this present And by the Statute of 27 Eliz. ch 6. every Juror must have Forty pounds Lands In the end of the Statute made 23 Hen. 6. c. 15. concerning the Election of Knights for the Parliament it is ordered and expresly provided That no man shall be such Knight which standeth in the degree of a Yeoman It appeareth in Lambert's Perambulation of Kent 367. that this Saxon word Telphioneman was given to the Theyne or Gentleman because his life was valued at One thousand two hundred shillings and in those days the lives of all men were rated at certain sums of Money To the Churle or Yeoman because the price of his head was taxed at Two hundred shillings Which things if it were not expresly set forth in sundry old Laws yet extant might well enough be found in the Etymology of the words themselves the one called a Twelve hundred man and the other a Twyhind for a man of Two hundred And in this Estate they pleased themselves insomuch that a man might and also now may find sundry Yeomen though otherwise comparable for wealth with many of the Gentile sort that will not yet for that change their condition nor desire to be appareled with the title of Gentry By the Common Law it may appear in 1 Ed. 2. de Militibus and 7 Hen. 6. 15. a. men that had Lands to the value of Twenty pounds per annum were compellable at the King's pleasure to take upon them the Order of Knighthood and upon Summons there came a Yeoman who might expend a hundred Marks per annum and the Court was in doubt how they might put him off and at last he was waved because he came the second day By this sort of men the trial of Causes in the Country proceedeth ordinarily for of them there are greater number in England than in any other place and they also of a more plentiful livelyhood and therefore it cometh to pass that men of this Country are more apt and fit to discern in doubtful Cases and Causes of great examination and trial than are men wholly given to moil in the ground to whom that Rural exercise engendreth rudeness of wit and mind And many Franklins and Yeomen there are so near adjoyning as you may make a Jury without difficulty for there be many of them that are able to expend One or two hundred pounds per Annum As in the ancient time the Senators of Rome were elected a Censu and as with us in conferring of Nobility respect is had to their Revenues by which their Dignity and Nobility may be supported and maintained So the Wisdom of this Realm hath of ancient time provided that none shall pass upon Juries for the trial of any matter real or personal or upon any criminal cause but such as besides their Moveables have Lands for estate of life at the least to a competent value lest for need or poverty such Jurors might easily be corrupted or suborned 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 that such will commit or omit nothing that may any way be prejudicial to their estimation or which may endanger their Estates than it hath of