lawfully do by Office that is to say The Steward of the King's Houshold notwithstanding the Liberty of any other although in another Kingdom when the Offender may be found in the King's Houshold according to that which happened at Paris in the Fourteenth year of Edward the First when Engelram of Nogeut was taken in the Houshold of the King of England the King himself being then at Paris with silver Dishes lately stoln at which deed the King of France did claim Cognizance of the Plea concerning that Theft by Jurisdiction of that Court of Paris The matter being diversly debated in the Council of the King of France at length it was Ordered That the King of England should use and enjoy that Kingly Prerogative of his Houshold who being Convicted by Robert Fitz-Iohn Knight Steward of the King's Houshold of the Theft by consideration of the said Court was hanged on the Gallows in St. Germans Field And here by the way may be noted from those recited Books alledged That the person of the King in another King's Dominions is not absolutely priviledged but that he may be impleaded for Debt or Trespass or condemned for Treason committed with in the said Dominions For it is the general Law of Nations that in what place an Offence is committed according to the Law of the said place they may be judged without regard to any priviledge Neither can a King in any other Kingdom challenge any such Prerogative of Immunity from Laws For a King out of his proper Kingdom hath not merum Imperium but only doth retain Honoris titulos dignitatis so that where he hath offended in his own Person against the King in whose Nation he is per omnia distringitur etiam quoad personam And the same Law is of Ambassadors ne occasio daretur delinquendi That Ambassadors are called Legats because they are chosen as fit men out of many and their Persons be sacred both at home and abroad so that no man may injuriously lay violent hands upon them without breach of the Law of Nations and much less upon the person of a King in a strange Land Bracton a Judge of this Realm in the Reign of King Henry the Third in his first Book and eighth Case saith There is no respect of Persons with God but with men there is a difference of Persons viz. the King and under him Dukes Counts Barons Lords Vavasors and Knights Counts so called because they take the Name from the County or from the word Sociati who also may be termed Consules of Counselling for Kings do associate such men unto them to govern the People of God ordaining into great Honours Power and Name where they do gird them with Swords that is to say Ringis gladorium Upon this cause were the Stations and Encampings of Arms called by the Romans Castra of the word Castrare since they ought to be Castrata vel Casta. In this place ought a good General to foresee that Venus Delights be as it were gelded and cut off from the Army So Sir Iohn Fern's Book entituled The Glory of Generosity Ring so called quasi renes girans circundans for that they compass the Reins of such that they may keep them from Incest of Luxury because the Luxurious and Incestuous persons are abominable unto God The Sword also doth signifie the Defence of King and Country And thus much in general of the Nobility of England Now followeth a more particular Discourse of each particular Degree and first of his Majesty the Fountain from whence all these Rivulets and swelling Streams of Honour's Spring The most high and mighty Monarch CHARLES the second by the Grace of God King of Great Britaineâ— France and Irelandâ— Defender of the faith ca. The Effiges of the most high and mighty Monarch CHARLES the second by the Grace of God King of Great Britaine France and Ireland Deâ—ender of the faith câ—â— OF THE KING OR MONARCH OF Great Britain CHAP. II. MONARCHY is as ancient as Man Adam being created Soveraign Lord of the Universe whose Office was to govern the whole World and all Creatures therein His Posterity after his Death dividing into Tribes and Generations acknowledged no other Dominion than Paternity and Eldership The Fathers of Nations were instead of Kings and the Eldest Sons in every Family were reverenced as Princes from whence came the word Seignior amongst the Italians and French and Seignories for Lordship and Dominion of which Seneca makes two kinds viz. Potestas aut Imperium power to command Proprietas aut Dominium Property or Dominion These Empires in the Golden Age were founded upon natural Reverency and Piety their Power was executed with the soft Weapons of paternal perswasions and the greatest penalties that they inflicted upon the most Capital Criminals was the malediction of their Primogenitors with an Excommunication out of the Tribes But as Men and Vice began to increase Pride and evil Examples overshadowed Filial Obedience and Violence entred upon the Stage of the World the mighty Men truâ—ling in their own strength oppressed the Feeble and were at length forced to truckle under the tyranny of others more Gygantick than themselves which necessitated them to submit to Government for self-preservation many housholds conjoyning made a Village many Villages a City and these Cities and Citizens confederating established Laws by consent which in tract of time were called Commonwealths some being governed by Kings some by Magistrates and some so unfortunate as to fall under the yoak of a popular Rule Nam Plebs est pessimus Tyrannus The first Chiefs or Kings were men of Vertue elected for their Wisdom and Courage being both Reges Duces to govern according to their Laws in Peace and to lead them forth to Battel against their Enemies in time of Hostility And this Rule proving more safe for the people honourable amongst men and â—â—rm in it self than the other most Nations followed it approving the Sentence of Tacitus Prâ—stat sub Principo â—alo esse quam nulle Lamentable Experience the Mistress of Fools in some and of Wisdom in others in the Ages sequent necessitated them again to quit the â—orm of Election and to entail the Soveraign Power in the Hereditary Loyns of their Kings to prevent the fatal consequence of Ambition amongst equal pretenders in popular Elections Thus the beginning of an Empire is ascribed to reason and necessity â—ut 't was God himself that illuminated the minds of men and let them see they could not subsist without a Supream in their human affairs Necessitas â—st firmum judicium immutabilis providentiae potestas This Island of Great Britain when Barbarism was so happy as to submit to a Regal Power as Caesar in his Commentaries witnesseth then divided into many Kingdoms under which Government of Kings with some small alterations according to the necessity of times and pleasure of Conquerors it hath flourished descending from the British Saxon Danish Norman and
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
Hen. 1. fol. 3. and so doth Vlpian the Civilian determine And this is one of the three Reasons alledged wherefore by the policy of our Law the King is a Body Politick thereby to avoid the attainder of him that had right to the Crown Coke's seventh part 12. a. lest in the interim there should be an interregnum which the Law will not suffer because of the manifold Incumbrances thereof For it hath been clearly resolved by all the Judges of the Land That presently by the descent of the Crown the next Heir is compleatly and absolutely King without any essential Ceremony or Act to be done ex postfacto And that Coronation is but a Royal Ornament and outward Solemnization of the Descent And this appeareth evidently by abundance of Presidents and Book-Cases Let us take one or two Examples in a Case so clear for all King Henry the Sixth was not crowned till the Eighth year of his Reign and yet divers men before his Coronation were attainted of Treason Felony and the like Crimes and he was as absolute and compleat a King for matters of Judicature Grants c. before his Coronation as he was after Queen Mary reigned three moneths before she was crowned in which space the Duke of Northumberland and others were condemned and executed for Treason which they had committed before she was Queen And upon this reason there is a Maxim in the Common Law Rex nunquam moritur in respect of his ever living and never dying politique capacity In France also the same Custome hath been observed and for more assurance it was expresly enacted under Charles the Fifth That after the death of any King his eldest Son should immediately succeed for which cause the Parliament Court of Paris doth accompany the Funeral Obsequies of those that have been their Kings not in mourning attire but in Scarlet the true Ensign of the never dying Majesty of the Crown Nevertheless certain Cities in France not long since alledged for themselves that because they had not reputed Henry the Fourth for their King and professed Allegiance unto him they were not to be adjudged Rebels Whereupon the chief Lawyers of our Age did resolve That forasmuch as they were original Subjects even Subjects by Birth they were Rebels in bearing Arms against their King although they had never professed Allegiance unto him To conclude this Chapter I shall give you a View of the Ceremonies of the Creation of Henry Prince of Wales which began on the Thirtieth of May 1610. as followeth The Prince accompanied with divers young Noblemen together with his own Servants rode from his Court at St. Iames's to Richmond where he reposed that night on the next day the Lord Mayor Aldermen with the several Companies in their Barges attended his Highness about Barn Elmes where he was entertained with a Banquet and in other places with Speeches by a Neptune upon a Dolphin and a Sea Goddess upon a Whale c. His Highness landing at Whitehall was received by the Officers of his Majesties Houshold according to order viz. by the Knight Marshal and the Serjeant Porter In the Hall by the Treasurer and Comptroller of the Houshold in the great Chamber by the Captain of the Guard and in the presence Chamber by the Lord Chamberlain from whence he went into the Privy Chamber where the King and Queen met him the Saturday after was taken up with the usual Ceremonies of making Knights of the Bath to attend his Highness at his Creation which were Five and twenty in number Upon Monday following these Knights of the Bath met in the Queens Closet where they put on long Purple Satten Robes lined with white Taffata and a Hood like a Batchelor of Law about their Necks and in a Barge prepared for them went before the Prince to Westminster Palace where his Highness landed and proceeded to his Creation thus First the Heralds Next the Knights of the Bath Then the Lords that were imployed in several Services Garter King at Arms bearing the Letters Patents The Earl of Sussex the Robes of Purple Velvet The Earl of Huntington the Train The Earl of Cumberland the Sword The Earl of Rutland the Ring The Earl of Derby the Rod. The Earl of Shrewsbury the Cap and Coronet The Earl of Nottingham and Privy Seal supported his Highness being in his Surcoat only and bareheaded to the Parliament Chamber The King was already set with all the Lords Spiritual and Temporal in their Robes of State all the Knights and Burgesses of the lower House present as also the Foreign Ambassadors the great Ladies of the Realm and the Lord Mayor and Aldermen of London seated upon Scaffolds The Procession entring in manner aforesaid made three several low Reverencies to his Majesty and when they came to the Throne Garter King at Arms kist the Letters Patents and gave them to the Lord Chamberlain who presented them to the King who delivered them to the Earl of Salisbury Principal Secretary of State who read them the Prince kneeling all the while before the King and at the words accustomed the King put on the Robe the Sword the Cap and Coronet the Rod and the Ring The Patent being read the King kist him on the Cheek and the Earl Marshal with the Lord Chamberlain placed him in his Parliament Seat viz. on the left hand of the King which Ceremony being ended they returned to the Palace Bridge in manner as followeth First the Masters of the Chancery the King's Council and others then the Officers of Arms the Knights of the Bath next twenty Trumpets before them then the Judges and after them all the Members of Parliament in order the Barons Viscounts Earls and Marquisses having Coronets on their Heads then Norroy and Clarenceaux King at Arms going next before the Lord Treasurer and the Lord Chancellor then Garter next before the Sword and then the Prince and King They took Barge at the Palace Stairs and landed at Whitehall Bridge where the Officers at Arms the Members of Parliament and the Lords being first landed attended the King and Prince and went before into the Hall and so into his Majestie 's Presence Chamber whence the Prince descended again into the Hall to Dinner himself seated at the upper end of a Table accompanied with the Lords that attended him at his Creation who sate on both sides of the Table with him At another Table on the left hand sate the Knights of the Bath in their Robes along one side attended by the King's Servants At the second Course Garter with the Heralds came to the Prince's Table and after due reverence proclaimed the King's Style with three Largesses viz. King of England Scotland France and Ireland Defender of the Faith c. And then proclaimed the Prince's Titles viz. Prince of Wales Duke of Cornwall and Rothsay Earl of Rothsay Earl of Chester and Knight of the Garter with two Largesses Then with Feasting Masques and all sort of Courtly Gallantry that joyful
Parliament by Writ as Baron such Heir Male omitting the Husband of the Issue of such Heir Female And this also appeareth by a notable Controversie in the time of Henry the Seventh between Sir Robert Willoughby Lord Brook and Richard Lord Lattimer for the Barony of Lattimer which in effect was The said Lord Brook did challenge the Barony of Lattimer as Coâ—in and Heir of Elizabeth his Great-grandmother who was Sister and Heir of Iohn Nevill Lord Lattimer who died without Issue And hereupon exhibited a Petition to Henry the Seventh in Parliament whereunto Richard Lord Lattimer was called to answer because he then enjoyed the said Title and Dignity The said Richard Lord Lattimer did by his Answer shew That after the death of the said Iohn Nevill Lord Lattimer without Issue the said Elizabeth was his Sister and next Heir and married unto Thomas Willoughby Knight second Son of the Lord Willoughby But Henry the Sixth for that the said Iohn Nevill Lord Lattimer was dead without Issue and that the next Heir was Female did therefore call to the Parliament George Nevill Knight second Son of Henry Earl of Westmoreland to be Lord Lattimer as Cosin and next Heir Male of the said Iohn Nevill Lord Lattimer which George was Grandfather of the said Richard Lord Lattimer Father of the said Richard In debate of which cause the Question now in hand namely Whether a Barony by Writ may descend to the Heirs Female was advisedly considered of by the King and his Nobility in Parliament and in the end adjudged with the said Richard Lord Lattimer which President doth afford us two Judgments in this point And in the time of Henry the Sixth when the Writ was directed to the said Sir George Nevill Knight whereby he was summoned as Lord Lattimer to the Parliament and as Heir Male and not the said Thomas Willoughby Knight husband of the said Elizabeth Heir Female And the second Judgment was given in the time of Henry the Seventh whereby the said Barony was adjudged to the said Richard Lord Lattimer coming out of the special Heir Male against the Lord Brook descended of the general Heir Male. But here in this President before remembred of the Barony of Dacres may be objected to encounter this Conclusion for there was an Heir Female married unto Sir Richard Fines who by the Declaration of King Henry the Sixth was Baron of Dacres in right of his wife And there was also Ralph and Humphrey the Heirs Males before whom the Heir Female was preferred by the censure of Henry the Sixth and Edward the Fourth This Objection is easily answered for although Henry the Sixth through the Princely favour which he bore unto Sir Richard Fines had declared him to be Lord Dacres in right of his wife yet notwithstanding did Ralph Dacres being Heir Male then unto the Lord Dacres and by that name was attainted in Parliament Anno primo Hen. 4. Wherefore the reason why the Heir Male could not be regarded was the said Attainder of the said Raâ—ph and Humphrey his brother and therefore when Humphrey in the 12 th of Edward the Fourth laboured to have the said Attainder Reversed he submitted himself to the Arbitrement of the King who to satisfie both Competitors both having deserved of him after he had admitted them to his favour he allowed one to be Lord Dacres and the other to be the Lord Dacres of Gillesland And thus much concerning the second Point Whether a Barony by Writ may descend unto the Heir Female The third Point As concerning the third Point admitting such Descent to be to the Heir Female when there is no Heir Male that may claim the same for then doth this Question take place Whether the husband of such an Heir Female shall enjoy the Dignity in right of his wife or no Wherein we are to rest upon a Resolution had and given to this special Question which was in this manner In the time of Henry the Eighth when Mr. Winby took upon him the style of Lord Talbois in right of his wife having no Issue by her The said King assisted both by Civil and Temporal Lawyers gave Sentence That no husband of a Baroness in her right should use that Style and Dignity until he had by her a Child whereby she should become Tenant by Courtesie unto her Inheritance The special Reasons that occasioned this Sentence were two First It should be convenient for her husband this day to be a Baron and a Peer of the Realm and to morrow by the death of his wife to become none and without the default of the party Secondly If he had Issue by wife and were entituled to be Tenant by the Courtesie of England of his wives Lands if he shall not also bear the Style and Dignity of his Wives Barony then should the Son after the death of his mother dying in the life time of his father be a Baron and Lord without Land for so the father should have the Land as Tenant by Courtesie and the Son the Lordship without Land And thus much said concerning the Nature Quality and Estate of a Baron by Writ and for the Resolution of the several points and Articles of the Question proposed may suffice CHAP. XII Barons by Patent which is the third kind of Barons mentioned in the former Division of Barons THere is also a fourth means of Creation viz. by Act of Parliament but the first two mentioned and this other by Patent is most usual for the Honour of the King for thereby the Donation doth proceed from his Majesty only as from the Fountain of Honour But when the Creation is by Parliament the King ever is one and may be said to be Donor A Baron therefore by Creation by reason of Letters Patents is that noble Person whom the King or any of his Progenitors Kings of this Realm have created Baron by such their Letters Patents began in the Reign of King Richard the Second This kind of Dignity of a Baron shall be of such continuance in Descent or otherwise as shall be limited in the Habendum in such Letters Patents contained for it may be but for the life of him to whom it is given or for term vanter vie as some hold Opinion in the 32 of Hen. 6. for cujus est dare est disponere It may be in special in our general Tayl and this kind of Tayl was usual before the Statute made decimo tertio of Edw. 1. by which Estate Tayl of Lands and Tenements was created as appeareth by the Patent whereby Hubert de Burgo was made Earl of Kent in the time of Henry the Third by these words Habendum sibi haeredibus suis de corpore Margaretae uxoris sui sorors Alexandri Regis Scotiae procreatis pro defectu talis exitus remanere in directis haeredibus dicti Huberti And that Estates intayl are at this Day of Titles of Honour by the said Statute of Westminster the second Question If a
at pleasure and so it is adjudged and declared by Parliament in the First and Second of Philip and Mary cap. 8. fol. 156. But not between the Majestical Style of the King and the Title of Honour appertaining to a Subject this difference is between Grants or Purchases made by or to a Nobleman c. For in that first case it is necessary that the Name King be expressed otherwise they are void But if a Duke Earl or other Degree of Nobility do Purchase or Grant by the Name of Baptisme and Surname or other Title of Honour it is not void for it is a Rule in Law That every man's Grant shall be construed most to the benefit of him to whom the said Grant is made that it may rather be strengthened than made void for there is a great diversity in the Law between Writs and Grants For if Writs are not formally made they shall be abated which is only the loss of the same but if a Grant should be made void then the party hath no remedy to have a new one and for that cause the Law doth not favour Advantages by occasion of false Latin or such like mistake And if an Earl be Plaintiff or Demandant and having the Writ shall not abate but nevertheless he shall proceed and count by the Name of an Earl according to such Title of Honour as he did bear at the time of the Commencement of his Action But if the Plaintiff in a Quare Impedit be made Knight having the Writ shall abate There is a Statute made in the First of Henry the Fifth cap. 5. wherein is contained as followeth Item It is ordained and established That every original Writ of Actions personal Appeals and Indictments in which the Exigent shall be awarded in the names of the Defendants in such Writs original Appeals and Indictments additions shall be mâ—de of their Estates Degrees and Mysteries and the Towns Hamlets and Places and the County where they were or be conversant And if by Process upon the said original Writs Appeals or Indictments in which the said additions are omitted any Outlawries be pronounced that they be clearly void and that before these Outlawries pronounced the said Writs and Indictments shall be abated by the exceptions of the party wherein the said additions are omitted Provided that though the said Writs of Additions Personal be not according to the Records and Deeds by the surplusage of the Additions aforesaid that for this cause they be not abated And that the Clerks of Chancery under whose Names such Writs shall go forth written shall not leave out or make omission of the said Additions as aforesaid upon pain of punishment and to make fine to the King by the discretion of the Lord Chancellor or Keeper And this Ordinance shall begin to hold place at the suit of the party from the Feast of St. Michael then next ensuing Although addition of Estate Degree and Mystery to be added unto Names be written in the Statute first before the additions of the Places and Counties yet it hath been used always after the making of the said Statute to place the Addition of Estate Degree and Mystery after the Places and Counties in all Writsâ— Appeals and Indictments against common persons But the use is otherwise in Appeals and Indictments of Treason or Felony against Dukes Marquisses and Earls for their Names of Degrees are in such case put before the Additions of Places and Counties as Charles Earl of Westmoreland late of Branspit in the County of Durham Names of Dignity as Dukes Earls Barons Baronets Knights c. are contained within the word Degree for the Sate of a man is his Mystery Brook Chief Iustice of the Common Pleas in Abridgment of the Case of 14 Hen. 6. fol. 15. titulo Nosme de Dignitate Injuries done to the Name and Honour of a Nobleman IN the Second of Richard the Second c. 1. that Counterfeits and Spreaders abroad of false and reproachful words and lies against the Nobility Prelates and Great Men in publick Offices as the Lord Chancellor or Keeper the Lord Treasurer Lord Steward of the King's Houshold the Judges c. whereby Debates and Discord may arise between the said Lords and Commons to the great detriment of the Realm if due Remedy be not provided It is sâ—raitly Enacted upon grievous pain to eschew the said Dangers and Perils That from thenceforth none presume to tell or report any false and scandalous News against any of the persons aforesaid whereby discord or any slander might arise and he that doth the same shall incur the punishment ordained by the Statute of Westminster cap. 33. which wills that he be taken and imprisoned till he have found him that first reported the same And further by another Statute Anno 12 Rich. cap. 12. it was enacted moreover That when the said Offender is taken and imprisoned and cannot find him that first spake them then he shall be punished by the advice of the Council And to the intent that such evil disposed persons which by their lewd speeches and slanderous words or reports do endeavour to break and disquiet the peace of the Realm might the sooner be enquired of found out and punished by a Statute made in the first and second of Philip and Mary it was established That the Justices of the Peace in every Shire City and Town Corporate within the Limits of their several Commissions shall have full power to hear and determine the Causes abovesaid in the two Acts of Edw. 1. and 2 Rich. 2. specified and to put the said Statutes and every part thereof in due execution that condign punishment be not deferred from such Offenders And besides the said Penalties to be so inflicted on Transgresâ—ors every Nobleman or great Officer of the Realm against whom any scandalous words false news or lies are spoken may prosecute the Offender in any Action de scandalis magnatum and recover damages against him And in like manner may every inferiour person for any such like words of infamy spoken against him recover damages against the Offender And in former times speeches tending to the reproach of others were so odious that King Edgar ordained That his Tongue should be cut out that spake any infamous or slanderoas words of another And the said Lord Beauchamp did sue an Action upon the Statute of Richard the Second cap. 5. de scandalis magnatum against Sirâ— Richard Châ—â—fts because he did sue a Writ of forging of false Deeds against the said Lord Beauchamp and the Defendant doth justifie the said slander by use of the said Writ c. And upon Demurrer the matter of Justification was good so that he was not liable to the punishment of the said Statutes but was quite discharged from the same There is no foul puddle that ariseth from the same corrupt Quagmire and distilled likewise out of a heart infected with Malice and Envy but it devised and practised by another meaner than
those ancient Fees in the time of Henry the Third and Edward the Fourth at this day do amount unto most men are not unskilful in Coke's seventh part 33. And in Cases of Decay of Ability and Estate as Senatores Romani amoti Senatu so sometimes they are not admitted to the Upper House of Parliament though they still keep their Title and Dignity Sir Thomas Smith de Republica Aâ—glorum 22. and by the Statute made 31 Hen. 8. cap. 10. the Lords have their places prescribed after this manner as followeth viz. These four the Lord Chancellor the Lord Treasurer the Lord President of the Council and the Lord Privy Seal being Persons of the Degree of a Baron or above are in the same Act appointed to sit in Parliament and in all Assemblies and Councils above all Dukes not being of the Blood Royal viz. the King's Uncle Brother and Nephew And these six viz. the Lord Great Chamberlain of England the Lord High Constable of England the Lord Marshal of England the Lord Admiral of England the Lord High Steward of his Majesties Houshold and the Lord Chamberlain also of his Mâ—jesties Houshold by that Act are to be placed in all Assemblies of Council after the Lord Privy Seal according to their Degrees So that if he be a Baron than he is to sit above all Barons or if an Earl above all Earls And so likewise the King's Secretaries being Barons or Earls have place above all Barons or Earls PRIVILEDGES Incident to the NOBILITY According to the Laws of England CHAP. XIII WHEN a Peer of the Realm and Lord of the Parliament is to be Arraigned upon any Trespass or Felony whereof he is indicted and whereupon he hath pleaded Not Guilty the King by his Letters Patens shall assign some great and sage Lord of the Parliament to be High Steward of England for the day of his Arraignment who before the said day shall make a Precept to his Serjeant at Arms that is appointed to serve him during the time of his Commission to warn to appear before him Eighteen or Twenty Lords of the Parliament or Twelve at the least upon the same day And then at the time appointed when the High Steward shall be set under the Cloth of Estate upon the Arraignment of the Prisoner and having caused the Commission to be read the same Serjeant shall return his Precept and thereupon the Lords shall be called and when they have appeared and are set in their places the Conâ—â—able of the Tower shall be called to bring his Prisoner to the Barr and the High Steward shall declare to the Prisoner the cause why the King hath assembled thither those Lords and himself and perswade him to answer without fear and then he shall call the Clerk of the Crown to read his Indictment unto him and to ask him if he be Guilty or not whereunto when he hath answered Not Guilty the Clerk of the Crown shall ask him How he will be tryed and then he will say By God and his Peers Then the King's Serjeant and Attorney will give Evidence against him whereunto when the Prisoner hath made answer the Constable shall be commanded to receive the Prisoner from the Barr to some other place whilst the Lords do secretly confer together in the Court and then the Lords shall rise out of their places and consult amongst themselves and what they affirm shall be done upon their Honour without any Oath to be ministred upon them And when all or the greatest part of them shall be agreed they shall retire to their places and sit down Then the High Steward shall ask of the youngest Lord by himself if he that is Arraigned be Guilty or not of the Offence whereof he is Arraigned and then the youngest next him and so of the residue one by one until he hath asked them all and every Lord shall answer by himself And then the Steward shall send for the Prisoner again who shall be led to the Barr to whom the High Steward shall rehearse the Verdict of the Peers and give Judgment accordingly The Antiquity and Original of this kind of Tryal by the opinion of several Authors is grounded from the Statute of Magna Charta so called not in respect of the quantity but of the weight of it Coke to the Reader before his eight part fol. 2. cap. 29. beginning thus Millus liber homo c. nec super eum ibimus nec super eum mittemus nisi per legale judicium parium suorum But I take it to be more ancient than the time of Henry the Third as brought into the Realm with the Conqueror being answerable to the Norman and French Laws and agreeable with the Custom Feudale where almost all Controversies arising between the Sovereign and the Vassal are tryed per Iudicium parium suorum And if a Peer of the Realm upon his Arraignment of Treason do stand mute or will not answer directly Judgment shall be given against him as a Traytor Convict and he shall not be prest to death and thereby save the forfeiture of his Lands for Treason is out of the Statute of Westminster 1. chap. 12. 15. Ed. 4. 33. Dyer 205. But if he be Arraigned upon Indictment of Felony he may be mute This priviledge hath some restraint as well in regard of the person as in the manner of proceeding As touching the person first the Archbishops and Bishops of this Realm although they be Lords of the Parliament if they be impeached of such offence they shall not be tryed by the Peers of the Realm but by a Jury of Knights and other substantial Persons upon their Oaths the reason thereof alledged is so much as Archbishops and Bishops cannot pass in the like cases upon Peers for that they are prohibited by the Common and Ecclesiastical Laws to be judged of Life and Blood Reason would that the other Peers should not try them for this Tryal should be mutual forasmuch as it is performed upon their Honours without any Oath taken And so by the way you may see the great respect the Law hath to a Peer of the Realm when he speaketh upon his Honour even in a case concerning the life of a man and that of a Peer and therefore ought they much more to keep their Words and Promises in smaller matters when they engage their Honour for any just cause or consideration Secondly as touching these persons no Temporal Lords but they that are Lords of the Parliament shall have this kind of Tryal and therefore out of this are excluded the eldest Son and Heir apparent of a Duke in the life of his Father though he be called an Earl And it was the case of Henry Howard Earl of Surrey Son and Heir apparent to Thomas Duke of Norfolk in 38 Hen. 8. which is in Brook's Abridgment Treason 2. Likewise the Son and Heir apparent of an Earl though he be called a Lord. And all the younger Sons of Kings are Earls
priviledge allowed unto him to keep in his Family the number of six born Strangers By the Statute 14 Hen. 8. cap. 13. a priviledge was granted to the Nobility according to their degrees concerning Apparel but because by a Statute made in the first of the King that now is chap. 15. all Laws and Statutes concerning Apparel are taken away Whereas by the Statute 2 Hen. 5. Parl. 2. cap. 1. it is ordained That the Justices of the Peace in every County named of the Quorum shall be resident in the Shires wherein they are Justices there is a Proviso whereby the Lords and Peers of the Realm named in such Commissions are excepted By the Statute 1 Edw. 6. cap. 12. amongst other things it is enacted That in all and every Case and Cases where any of the King's Subjects shall and may upon his prayer have the priviledge of the Clergy as a Clark Convict that may make purgation in all the Cases and every of them and also in all and every Cases of Felony wherein the priviledge or benefit of Clergy is taken away by this Statute wilful Murther and poysoning only excepted the Lords and Peers of the Realm having place and voice in Parliament shall by vertue of this Act of Common Grace upon his or their requests and prayer alledging that he is a Lord or Peer of this Realm claiming the benefit of this Act though he cannot read without burning in the Hand loss of Inheritance or corruption of Blood be adjudged taken and used for the first time only to all constructions intents and purposes as a Clark Convict which may make purgations without any other benefit of Clergy to any such Lord or Peer from thenceforth at any time after for any cause to be allowed adjudged or admitted any Law Custome Statute or other thing to the contrary notwithstanding By this Statute a Lord of the Parliament shall have the benefit of his Clergy where a common person shall not viz. for breaking open an House by day or night or for robbing any on the High-way and in all other Cases excepted saving in wilful Murther and Poysoning but in all other Cases wherein Clergy is taken away by any Statute made since the said Statute of 1 Edw. 6. he is in the same degree that a common and inferiour person but the Court will not give him the benefit of this Statute if he doth not require it If a Lord of the Parliament do confess his Offence upon his Arraignment or doth abjure or is Outlawed for Felony it seemeth that in these Cases he may have the benefit of this Statute viz. his Clergy for that by the Statute 18 Eliz. cap. 18. he nor any other need to make his purgation but shall be forthwith delivered out of Prison by the Justices By the Imperial Constitutions Nobiles non torquentur Nobiles non suspendentur sed decapitantur and so it is almost grown into a Custome of England by the favour of the Prince for it is rare to have a Nobleman executed in other form Yet Thomas Fines Lord Dacres of the South in the 23 th of Henry the Sixth and the Lord Sturton in the fourth of Queen Mary were hanged At the Common Law it was lawful for any man Noble or Ignoble to retain as many Chaplains as they pleased for their instruction in Religion But by a Statute made 21 Hen. 8. cap. 13. a restraint was made and a certain number only allowed the Nobility And such Chaplains for their attendance have Immunities as by the Statute at large may appear viz. every Archbishop and Duke may have six Chaplains whereof every one may have and purchase Licence of Dispensation and take receive and keep two Parsonages or Benefices with Cure of Souls and that every Marquiss and Earl may have five Chaplains every Viscount or other Bishop four Chaplains and every Baron and Knight of the Garter may have three Chaplains whereof every one of them may purchase License of Dispensation and take receive and keep two Benefices with Cure of Souls And forasmuch as the retaining of Chaplains by Lords and Peers of the Realm is ordinary and nevertheless some questions have been concerning the true understanding of the said Statute Law I think it not unnecessary to set down some subsequent Resolutions of the Judges touching some matters If a Bishop be translated to an Archbishoprick or a Baron be created an Earl yet in this case they can have but only so many Chaplains as an Archbishop or an Earl might have for although he hath divers Dignities yet he is still but one person to whom the attendance and service should be done So if a Baron be made a Knight of the Garter or Lord Warden of the Cinque Ports he shall have in all but three Chaplains sic de similibus And if such an Officer allowed by the Statute to have one two or more Chaplains do retain accordingly and after he is removed from his Office in this case he cannot be now Nonresident nor accept a second Benefice of his Complement which was not full before his removing and in that case it behoveth the Chaplain to procure a Non obstante otherwise he may be punished for his Nonresidence So if any Earl or Baron do retain a Chaplain and before his advancement his Lord is Attainted of Treason as it was in the Case of the Earl of Westmoreland after the said Attainder such a Chaplain cannot except a second Benefice for though his Lord be still living according to Nature yet after the Attainder he is a dead person by the Law and therefore out of the case to have priviledge for himself or for his Chaplains If a Baron have three Chaplains and every of them have two Benefices and after the Baron dieth they shall enjoy those Benefices with Cure which were lawfully settled in them before But in this case although the said Chaplains be resident upon one of his Benefices yet now he is become punishable for being resident upon the other for Cessante causa cessat effectus The same Law is if the Baron be attainted of Treason or Felony or if any Officer be removed from his Office sic de similibus So if a Lord do one time retain more Chaplains than are allowed by the Law the lawful number only shall have priviledge and in this case which of them be first promoted shall have priviledge and the rest are excluded for aequali jure melior est conditio possidentis If a Nobleman doth retain Chaplains above his number at several times if any of his Chaplains die the next that was retained shall not succeed for his first retainer was void and therefore in this case it behoveth him to have a new retaining after the death of the predecessor and before his advancement for quod ab initio non valet in tractu temporis non convalescit If a Noble person retain such a number of Chaplains as is by the law allowed him
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
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