all degrees of Nobilitie is a part of the Law practised in every Kingdome under that division which respecteth publicke justice and therefore in regard of persons sub ordine debito this is now apparently perceived if we apply our thoughts to the regard of jurisdiction in generall which respecteth the fountaine of justice from whom it springeth All Justice is either commutatiue or distributive Commutative Justice determineth debates growing upon contracts inheritance or chattels and those bee reall or personall which suites are commenced ad instantiam partis by Plaint Bill or Writ in the ordinary Court of Justice within the Realme Distributive Justice is twofold for either it doth ordaine punishment for such crimes as doe fall within the correction of the lawes or else it doth distribute a reward for vertues That kind of Distributive justice that inflicts punishment proceedeth in some cases ad instant partis as in appeales of Murder Rape Robery c. That most usually Ex officio and that either by indictment or presentment That kind of Distributive justice which concerneth the advancement of vertue in bestowing of honour which is the proper guerdon of vertue In Camer stellat 39. El. z inter Comit. Kanc. Rotherom remaineth with the highest Soveraigne annexed to the Imperiall Crowne of the Realme for as vertue is the gift of none but God from heaven so the reward of vertue with honour for her Majestie Gods substitute on earth within c. But when honour and armes being the ensignes of honour be once bestowed on any or possessed by any if there shall arise contention betweene competitors for the same pretending severall challenge thereto the ancient policie of the Realme hath ordained an especiall Court The proper Court of honour armes the jurisdiction whereof is immediately derived from the Crowne and whereof the Judges have beene right honourable personages The Lord high Constable and the Earle Marshall and in later times the Judge thereof is the Right Honourable the Earle Marshall the jurisdiction of which Court consists in the execution of that part of Distributive Iustice which concerneth the advancement and support of Vertue The Court wherein and the Judges by whom these controversies are to be determined by that which is above said may partly appeare The Lawes whereby the same are to bee decided are the Lawes of God the generall conclusions of the lawes of Nature Dist lib. 10. cap 4. Com. 304.6 and of the law of Nations together with the customes usages of statutes and Ordinances of our Countrey in like cases heretofore either observed or provided or which are the primary grounds and chiefe principles of the lawes of this Realme And if no Cause heretofore hath happened that might bee a president to determine such future Controversies then in the judgement of such doubts that resolution is to be imbraced which is most correspondent to our government agreeable with the disposition of our people and so especially as that the new judgement so it be promulged doe not in any matter of consequence impeach infringe or infeeble any old or former received Law or usage then in force The law therefore of our Countrey so branched into severall Courts though the severall Jurisdictions aforesaid 8. Ed. 4. per Yelverton Bract. lib. 1. Cap. 2. ought to determine all civill and criminall Causes with the body of this Realme concerning whatsoever Causes Neverthelesse some men there are not duly considering of what principles and parts the Lawes doe consist have laboured to prove that the Quae. of Nobilitie and Armes should not bee determined by the lawes of the Realme framing unto themselves many Arguments to prove their Assertion the chiefe of which arguments are here proposed and answered Object 1 First it is said that the Lawes of the Realme doe make all the Daughters equally to inherit but it is not so in the descent of the Dignities and titles of Honour and therefore it seemeth that the Quae. concerning the descent of dignitie are not determinable by the lawes of the Realme To this Argument may bee answered Resolve Bract. li. 2. Cap. 4 fol. 10 li. 2. ca. 5 fol. 13. Coment 170. that there are divers inheritances some of things corporall as lands tenements c. some of incorporall framed not by nature but by mans policy and therefore called Iura the first sort doe lie in Livery the other are such as doe lie in grant Of the later sort there are divers kinds some matters of preceptible profit as Offices common c. Some others are matters chiefly of ease as wayes and passages over the land of others Some other concerne matter of profit and pleasure as Forrests Parkes Chases Warraines c. Others of jurisdiction as the grant of Courts others of Priviledges and immunities as a getter to one and his heires to be quit of Subsidies Dizmez Quinzems c. Others matter of honour as the dignitie of a Duke Marquesse Earle Viscount or Baron granted to one and his heires generall or to him and the heires of his bodie Inheritance concerning matters of honour Cap. 1. Praeterea de prohibita feodi alienatione per Frederes being things in their nature participating of superioritie and eminency are not partible in any equalitie among many and therefore must of necessitie descend unto one and that is unto the eldest Daughter inheritable where there are no heires males lawfully to challenge the same 23. H. 3. Fitz. Com. 8. There was a Judgement in the time of H. 3. touching the descent of the Earledome of Chester after the death of the Earle who died without issue male his Sisters being his heire which Judgement was that the said Earledome should be devided as other lands and not to the eldest But this Judgement was holden erroneous then For Bracton a learned Judge of that age Braction lib. 7. fol. 76 de Cosercen thus seemeth to write thereof viz. De hoc autem quod dicitur quod de feodo milit veniunt in divisione capital Messuagia inter cohaeredes dividuntur Hoc verum est nisi capitale Mess sit caput Comitat. propter jus gladii quod dividi non potest vel caput Baroniae castrum vel aliud aedificium hoc ideo ne sit caput in plures particulas dividatur jura Comitat. Baroniar ' deveniant ad nihilum per quod deficiat regnum quod ex Comitat. Baronibus dicitur esse constitutum si autem plura sunt aedificia quae sunt capita BAroniae dividi possunt in Cohaeredes facta electione salvo jum assuet quia cum plura ibi jura sunt quod liber per se poterit inte gre observari quod autem non est in uno ut praedoct ' est licet à qui busdam dicatur Quod in alijs Regionibus aliquando de consuetudine dividatur sed quod nunquam dividi videtur in Anglia debeat nec visum fuit contrar '
an Appeale of Maykem the parties bee at issue whether the hurt be a Maykem or no sometimes the Courts of the ordinary of some other Iudge or Officer as in matters spirituall by Certificate thereof from the ordinary c. And concerning matters done beyond the Seas in the Kings Army or concer-cerning Combate for honour armes c. by Certificate of the Lord Constable or Earle Marshall 3 H 6.6 48 E. 3.3 c. whereby appeareth the weakness of the former Argument but in cases usuall the law alloweth the triall by Witnesses without Iury And therefore in the Lord Constable and Earle Marshals Court matter in fact concerning Honour and Armes which lie not in the knowledge of the vulgart sorz the the Common Law grounded upon the best reason would it should be tried by witnesses or matters of Record as the cause shall require and not that the same should be tried by the conscience of the vulgar people 22. Assess pl. 24. being matters whereof they have no knowledge sufficiently to discerne Hitherto have I wandred of purpose to shew that our homebred Law is sufficiently able and ought to trie all causes civil other then Marine such as are rising with the body of the Realme and not in forraigne parts whereby appeared the excellencie of the Common Law which maintaineth the particular jurisdiction of every particular Court. For it is the common Law through the sundry Writs of prohibition which it useth which keepeth every Court within the compasse of his proper sphere and upholdeth the jurisdiction of the Court of the Earle Marshall By that therfore which hath beene said two things may sufficiently appeare First that the Court of the Lord Constable and Earle Marshall have had and now the Earle Marshals Court hath particular jurisdiction originally and primarily to determine matters of controversie concerning Chivalry Dignity Honour Armes and some other things acknowledged to belong to the said Court by the Lawes and Statutes of our Countrey Howbeit by a consequent but not originally some other Courts of ordinary justice may as the case shall require determine likewise such like controversies touching honour c. but not ease or in sua but rather by an adjunct as by this example may appeare If there bee two competitiours of a Barony and during the time that their cause is litigious the one of them is impleaded at the common Law by originall Writ Cap. alz plures in a personall action and thereupon an exigent is awarded whereupon insueth an Outlary the party outlwaed brings a Writ of errour and assigneth for errour that hee having such a Castle to him descended c. holden per Baroniam whereupon his Ancestours have beene Barons anp he himselfe Baron no Cap. ought to be awarded against him but in very speciall cases onely therefore the outlary erroneous This matter of errour alledged the Court cannot consider without due determination of the title of the Barony wherein if the Court of the Earle Marshall should adjudged one way by any forraigne Law in the same question depending there and the Court of B.R. adjudge another way by the common law of the Realme upon this Writ of errour there would ensue thereof a great confusion and inconveniencie in the Common-wealth which the law will rather eschew then any other mischiefe whatsoever Secondly therefore it doth appeare by the speeches aforesaid that the common law ought to decide this controversie and that both Courts ought to follow one and the same law in as much as the common law is more ample then ordinary reports of Cases in the yeare bookes For whatsoever is not disagreeing from the law of God and is consonant to the lawes of nature and Nations allowed by the customes of our Countrey not disagreable to former presidents answerable to all good learning is the vndoubted common law of the Realme which knowledgeth no other Author but God and nature and whereof the Iuges in all ages have ever thought it honourable to receive all good helpes from every faculty of literature in the ending of difficulties questioned before them The proofe therfore in this controversie to be produced shall be arguments of reason What māner of proofes are to be used in your Controversies allegations of authoritie presidents of time drawne out of Records Histories ouncient Monuments Lawes and customes of our owne countrey and furnished with such other matters of necessary knowledge as may tend to the better explanation It followeth somewhat to speake in generall of the dignitie and degree of a Baron The 2. matters before proposed whereby the Qu. in hand may be the better conceived and be reduced to a more cleere determination which for order sake I will reduce to the consideration of these principall heads 1. The definition or description of a Baron 2. The Etimologie of the name of Baron 3. The antiquitie thereof and the divers vse of the name 4. The division and consideration of the severall Kinds of Barons 5. The determination of certaine Qu. and difficulties tending to the more manifestation of the natures of the severall Kinds of Barons 6. And lastlie a declaration of the divers and sundry priviledges allowed by the lawes of this Realme unto the Barons and Nobilitie of the same wherin the vulgar c. hath no participation Which things being discouered there will be laied open as I doe conceiue a plaine way to the finall conclusion and resolution of the question in hand The definition or description of a Baron IT is a rule of Law that Om nis definitio in jure periculosissima Dig. l. 51. de regulis juris 203. omnis defifinitio Rarum est enim ut non subverti possit And therefore I doe not often see any definition or description of a Baron Baldus thus describeth a Baron Baldus Canotus de sectionibus vt sit quisquis merum mixtumque imperium in aliquo Castro opidove concessione principes habeatur But his seemeth rather particular to some then generall to all and therefore Alciatus vseth these words Nobis alia est sententia quia sciamus et in Germania Andr. Alciatus de duello c. 32. Refer Pet. Greg. in reg jur H. 6. capire 10. et Gallia solum Barones dici quibus super opidorum jurisdictionem haec dignitas specialiter concessa est Some thinke they are those which are meant under the name of Valvasores majores Capitanei In the second booke De feodis de titulo Quis dicatur dux c. And some others would have the dignitie of a Baron to containe every noble dignitie under the Earle Grand de supplenda neglig plator in Sexto Some common Lawyers there are which extoll the dignitie of a Baron before that of the Earles by reason of a subcription to a decretall epistle directed Baronibus Comit. regin Portugal They not considering that in another place in the same decretals it is more orderlie placed
Being arraigned of felony in an Appeale he shall not be tried by his Peeres as in case of Inditement in which case he may not challenge any of the Triers either peremptorily or upon causes which is permitted to all other common persons The Iudgment is the vsuall Iudgement given against common persons and though the King pardon all but the losse of his head that is of speciall grace not ex debito By Attainder the blood is corrupted and he and his posterity made ignoble Stam. lib. 3. cap. 34. and cannot be restored by the Kings pardon but onely by authoritie of Parliament And note that Nobility is not a thing substantiall but meerely accidentall present or absent without corruption of his subject for experience shewes that honourable titles are restrained by exorbitant crimes when the nature in the meane while cannot be thrust out with a forke wherefore though we tearme extinguishment of Nobility in cases of Attainder yet this phrase is not vsed as though Nobility were essentially in the homour of the blood more then any other hereditary faculty But because the right of inheritance which descends by communication of blood is by that meanes determined and also in regard of the detestation of the crime it is called corruption of blood 16. Eliz. Dyer 332. The Lord Charles Flowards case if one be made a Knight by a forraign King he is so to be stiled in all legall proceedings in this Realme But if he be created by the Emperour an Earle it is other wise Coke 7.16 If the King Create the son a Duke c. and the father dies he within age shal be in ward but if he had bin made a Knight in his fâ—â—hers life he should not be in ward neither for the lands descended nor marriage Coke 74. Drueries Case though he be within age Nobilitie and Lords in reputation onely THere be other Lords in reputation and appellation who neverthelesse are not Iure neither can they enjoy the priviledges of those of the Nobilitie of the Parliament viz. The Sonne and heire of a Duke during the life of his father is onely by curtesie called an Earle and the eldest sonne of an Ea. a Baron but not in legall proceedings Br. Treason 2. Coke 8-16 But the King may create them in the life of their Auncestors Lords of the Parliament A Duke or other of the Nobilitie of a forraign Nation being named Duke in Letters of safe conduct that makes him not Duke to be sued by that name in England but a forraigne King ought so to be stiled though he hath not merum imperium out of his owne Kingdome Cok 7.15 c All the younger Sonnes of the King of England are Earles by birth without other creation and onely Lords by reputation A Lord of Ireland or Scotland though he be post-natus is but onely Lord in reputation Noble Women ALthough Noble Women may not sit in Parliament in respect of their Sexes yet are they in Law Peeres of the Realme and may challenge all Coke 8.53 or most of the former Priviledges But the opinions of some have been Crompt Iust de peace 85. that they cannot maintaine any Action upon the Statute of 2. R. 2. cap. 2. de Scand Magnat because the Statute speakes onely of other Sexes If any of the Kings servants within in the Checkroll conspire the death of any Noble woman that is not felony within the Statute of 3. H. 7.13 Honourable women of three sorts By Creation Descent Marriage H. 8. Created Anne Bullen Marchionesse of Pembrooke King James Created the Lady Compton Wife to Sir Thomas Compton Countesse of Buckingham in the life of her said Husband without any addition of honour to him And formerly by Patents openly read in Parliament without any other investure did Create Mary sole Daughter and heire of the late Baron of Aburgauen Camden 63.6 Baronesse de le Spenser Noble Women by Descent are those to whom lands holden by such Dignitie doe descend or whose Ancestors were seized of an estate descendable in their Titles of Dukedomes c. or those whose Ancestors were summoned to the Parliament by this an Inheritance doth accrue to their posteritie They who take to Husband any Peere of the Realme though they themselves were not noble Fortescue fol. 100. Question hath bin made whether the Dignitie of one suÌ„moned to the Parliament dying without issue male may descend to the female but this may appeare by the former Treatise Concerning the title of Honour descendable to the Heire female it is cleere that such offices being of estate of inheritance doe descend as the office of the high Constableship of England challenged tempore H. 3. by the Duke of Buckingham was adjudged to descend to the Daughter of Humfrey Bohun Earle of Hereford So the office of Earle Marshall descended to the house of Norfolke all which offices are as unfit to be exercised by their sexes as unfit for them to be summoned to the Parliament And if such Title come in competition the issue shall bee tried by record and certified by the Kings Writ and not by Jury Coke 6.5 3.7 part 15. Though all Daughters be Coperceners and make but one Heire yet in descent of Dignities it is otherwise for they bee things entire participating of superioritie therefore descendable onely to the eldest And so is the Civill Law yet there was a Judgement tempore H. 3. touching the descent of the Earledome of Chester Obijt 17. H. 3. the Earle dying without issue leaving his Sisters his Heires The Judgement was that it should be divided equally among Coperceners But this Judgement was held erroneous in that very age Vide Bract. li. 2. cap. 34 fol. 76. hoc fuit injustum c. His reasons are because the honour of Chivalrie chiefly consisting in the Nobilitie may not be divided for by multitude of partitions the reputation of Honours in such succession must bee impaired and the strength of the Realme being drawne into many hands by such partition much infeebled In which resolution Britton by commandment and in the name of E. 1. accorded fol. 187. The former Judgement was given about 17. H. 3. And the Writers of that time testifie that it came holy unto Iohn Scot Son of David Earle of Huntington and Anguish and Maude the eldest Sister of the said Randolph if it were given upon the death of John Scot who died without issue about 24. H. 3. yet it stood in force because the King assumed the Earledome to himselfe upon other satisfaction to the coperceners Mat. Par. 366. tamen vide Mills 75. Guillem 28. Hugh Lupus the first Earle of Chester was by the Conquerour his vncle created into that dignitie Mills 74.75 Coke 35.7 part 15. habend fibi c. adeo libere per gladium sicut Rex ipse tenuit Angliam per Coronam c. he died without issue and the Earldome divided among his 4. sisters If she be noble