Adversaries in this manner viz. The Writ of Summons to the Parliament whereby the Baron by Writ hath his Original is to call that Honourable and Worthy Person so summoned to the number of that Right High and Honourable Assembly and to be a Judge to sit hear and determine Life and Member Plea and right of Land if there shall come occasion likewise to give Counsel and Advise in the most mighty Affairs of the Realm But these things are convenient for the quality and condition of men unfitting and altogether unbeseeming the Sex of women Ergo having respect unto the scope and final purpose of such Writs such Inheritances should only descend unto the Heir Female The Second Argument contra Secondly If it shall be answered That although the Heir Female to whom such Inheritance is descended be unfit in her own person for the accomplishing of these things yet she may marry with one sufficiently able for her and in her behalf to execute the same This Answer will neither satisfie nor salve the inconveniences For admit that such an Heir Female were at full Age at the death of her Ancestor unmarried for it doth lye in her own choice then whom shall be her Husband The Third Argument contra Thirdly If such Husband shall be called by the right of his Wife the Writ shall make some mention thereof for otherwise it may well be taken that the Husband was chosen in his own person and in behalf of himself and not in regard of his wife or such pretended Dignity descended unto him But there was never such a Writ of Summons seen wherein the wife was mentioned And if the husband of such a wife have been called to the Parliament which is always by General Writ not mentioning his wife he is thereby made a Baron of himself by virtue of the said Writ Having thus heard both sides to dispute place it doth now require to interpose Opinion to compound the Controversie This point in queâ—tion is somewhat perplexed by means of difficult Presidents For first it is observed That some Presidents do prove that Baronies by Writ have descended unto Heirs Female whose husbands have been called to Parliament whether in regard of themselves or in respect of their wives right it maketh no matter but since it is that the marriage of such Ladies gave that occasion to be summoned and such husbands and their Poâ—â—erity have and do lawfully bear the same Title of Dignity which the Ancestors of such a wife did before rightfully bear For by this Controversie theâ—e is no purpose to call the right of such Noble Houses into question Howbeit Secondly this is to be observed out of the Presidents and to be acknowledged of every dutiful Subject That the King's Majesty is nevertheless at liberty to call to his High Council of Parliament whom he shall in his Princely Wisdom think fit which by his Majestie 's Noble Progenitors have in former Ages likewise observed And therefore whereas Ralph Lord Cromwell being a Baron by Writ died without Issue having two Sisters and Coheirs Elizabeth the eldest who married Sir Thomas Nevile Knight and Ioan the younger who married Sir Humphrey Butcher Knight who was called to Parliament as Lord Cromwell and not the said Sir Thomas Thirdly It is to be observed That if a Baron by Writ die without Heir Male having his Daughter Sister or other Collateral Heir Male that can challenge the Land of the said Baron deceased by any ancient entail or otherwise the Title of such an Heir Female hath heretofore been allowed as by the honourable Opinions and Relations of the Right Honourable the late Commissioners in the Office of Earl-Marshal signified unto the late Queen upon Petition of the Sister and Heir of Gregory Lord Dacres deceased may appear Moreover in the same Pedigree of the Lord Dacres it was expressed That Thomas sometimes Lord Dacres had issue Thomas his eldest Son Ralph his Second and Humphrey his third Thomas the eldest died in the life of his Father having issue Ioan Daughter and Heir who was married to Sir Richard Fines Knight and after Thomas Lord Dacres his Grandfather and Father to the said Ralph and Humphrey died after whose death Henry the Sixth by his Letters Patents bearing date at Westminster the Seventh of November in the Seventh year of his Reign reciting the said Pedigree and Marriage doth by his said Letters Patents accept declare and repute the said Richard Fines to be Lord Dacres and one of the Barons of the Realm But afterwards in the time of Edward the Fourth the said Humphrey Dacres after the attainder of the said Ralph and himself by an Act of Parliament which was the first of Edward the Fourth And after the death of the said Ralph and the Reversal of the said Act by another Act in the Twelfth of Edward the Fourth the said Humphrey made challenge unto the said Barony and unto divers Lands of the said Thomas his Father whereupon both parties after their Title had been considered of in Parliament submitted themselves to the Arbitrement of King Edward the Fourth and entred into Bond each to other for the performance thereof whereupon the said King in his Award under his Privy Seal bearing date at Westminster the Eighth of April Anno Regni sui decimo tertio did Award that the said Richard Fines in the right of Ioan his wife and the Heirs of his body by the said Ioan begotten should keep have and use the same Seat and Place in every Parliament as the said Thomas Dacres Knight Lord Dacres had used and kept and that the Heirs of the body of the said Thomas Dacres Knight then late Lord Dacres begotten should have and hold to them and to their Heirs the Mannor of Holbeach And further That the said King Edward did Award on the other part that the said Humphrey Dacres Knight and the Heirs Males of the said Thomas late Lord Dacres should be reputed had named and called the Lord Dacres of Gillesland and that he and the Heirs Males of the body of the said Thomas then late Lord Dacres should have use and keep the place in Parliament next adjoyning beneath the said place which the said Richard Fines Knight Lord Dacres then had and occupied And that the Heirs of the body of the said Ioan his wife shall have and enjoy and that the Heirs Males of the said Thomas Dacres late Lord Dacres should have to them and the Heirs Males of their bodies begotten the Mannor of Iothington c. And so note that the name of the ancient Barony namely Gillesland remained unto the Heir Male to whom the Land was entailed Moreover this is specially observed If any Baron by Writ do die having no other Issue than Female and that by some special entail or other assurance there be an Heir Male which doth enjoy all or great part of the Lands Possessions and Inheritances of such Baron deceased the Kings have used to call to the
to the Crown of England shall bear his Coronet of Crosses and Flower de lis with one Arch and in the midst a Ball and Cross as hath the Royal Diadem That his Royal Highness the Duke of York and all the immediate Sons and Brothers of the Kings of England shall use and bear their Coronets composed of Crosses and Flower de lis only But all their Sons respectively having the Title of Dukes shall bear and use their Coronets composed of Leaves only as the Coronets of Dukes not being of the Royal Blood Note That by Order not Creation our present King was admitted Prince of Wales had the Principality with the Earldom of Chester c. confirmed to him by Patent and was allowed to hold his Court apart from the Kings The Prince by the Common Law is reputed as the same Person with the King and so declared by Statute temp Hen. 8. The Civilians say the King 's eldest Son during his Fathers life may be styled King by the Law of Nations because of his so near Relation to the Crown that if the Father die he is ipso momento Rex though he be not crowned A usual custome in Spain and once allowed here to Henry Son of King Henry the Second yet he holdeth his Seigniories and Principalities of the King as Subject to him and giveth the same respect to him as other Subjects do He hath certain priviledges above other persons To him it was permitted by the Statute 24 Hen. 8. cap. 13. to wear Silk of the colour of Purple and cloth of Gold of Tissue in his Apparel or upon his Horse And by the Statute 24 Ed. 3. ca. 2. Takings shall not be from henceforth made by others than the Purveyors of the King of the Queen and of the Prince their eldest Son And that if any mans Purveyor make such takings it shall be done of them as of those that do without Warrant and the Deed adjudged as a thing done against the Peace and the Law of the Land and such as do not in manner aforesaid shall be duly punished To eschew Maintenance and nourish Peace and Amity in all parts of the Realm many Statutes have been made in the Reign of King Henry the Fourth prohibiting the giving of Signs or Liveries to any but Menials nevertheless by the Statute 2 Hen. 4. cap. 21. it is provided that the Prince may give his honourable Liveries or Sign to the Lords or to his Menial Gentlemen and that the same Lords may wear the same as if they were the King's Liveries and that the Menials of the Prince may also wear the same as the King's Menials But afterwards by occasion of divers other Statutes made by sundry Kings for the suppressing oâ— that enormity of Maintenance and of the general word in them that priviledge of the Prince was abridged or rather taken away therefore the Statute 12 Ed. 4. cap. 4. was made By the Statute 21 H. 8. cap. 13. the Prince may retain as many Chaplains as he pleaseth although all other of the Nobility except those of the Blood Royal are constrained to a certain number and they or any of them may purchase Licence and Dispensation and take and retain two Parsonages or Benefices with Cure of Souls By the Order of the Common Law the King may Levy a reasonable Ayd of all his Tenants as well of those that did hold their Lands of him by Knights Service as in Soccage pur faire fitz Chevalier pur File marrier and the sum of Money was not in certainty Note that the Ayd is not to be recovered before the Son be of the Age of Fifteen years and the Daughter accomplish the Age of Seven years Fitz. Natur. B. 28.6 But in the King's pleasure till by the Statute in the 25 Ed. 3. cap. 11. it was Enacted That for the Knighting his eldest Son and marrying his eldest Daughter as aforesaid the Ayd following shall be demanded and levied viz. of every Knight so holden of the King without mean 20 s. and no more and of every 20. l. of Land holden of the King without mean in Soccage 20 s. and no more And so after this rate for the Lands in Soccage and for Land in Tenure of Chivalry according to the quantity of the Fee By another Statute made in the said 25 th of Edward the Third cap. 2. amongst other things it is declared That to compass or imagine the death of the King 's eldest Son and Heir is Crimen laesae Majestatis or if a man do violate the Wife of the King 's eldest Son and Heir it is High Treason And so the Statute 26 Hen. 8. cap. 13. doth declate And so was the ancient Common Law of this Realm and not a new Law made by the Statute Coke 8. part 28. b. but this Statute is a Manifestation and Application of the ancient Common Law in this Case Because the people were in ambiguity Whether Children born in parts beyond the Sea and out of the King's Dominions should be able to demand any Inheritance within his said Dominions or not It was declared at a Parliament holden at Westminster in the Seventeenth of King Iames for the removing of those doubts That les Enfants du Roy the Children of the Kings of England in whatsoever parts they are born in are able and ought to bear the Inheritance after the death of their Ancestors Read the Statute in Coke's Seventh Part 8. a. where you shall see that though generally the Birth-place is observed yet many times Legiance and Obedience without any place in the King's Dominions may make a Subject born For we see by Experience almost in every Parliament that Ambassadors Merchants and the King's Souldiers do sue therein in such Cases to have their Children Naturalized or made Denisons And in the Articles confirmed by Parliament touching the Marriage between Philip King of Spain and Queen Mary Anno primo Parliamenti 2. cap. 2. a special Proviso was to bar him from being Tenant by the Courtesie of the Crown in case he should have Issue by her and survive which was superfluous because the Common Law would have denied it For this last point see the Lord Chancellor's Speech in the Case Postnati f. 36. But note If an Alien Enemy come into this Realm and his Wife English or Stanger be here delivered of a Child this Child notwithstanding his Birth-place is an Alien born for want of Allegiance in the Parents ibid. King Henry the Third did create Edward his eldest Son the first Prine of Wales and did give unto him the Dominion and Dignity thereof to be holden of him and his Heirs Kings of England And after that time the eldest Sons of the Kings of England have been Princes of Wales and as incident to the State and Dignity of a Prince did and might make Laws and Statutes and use Jurisdiction and Authority as amply as any King of that Nation could do for Wales was a Kingdom in ancient
Office of a King to fight the Battels of his people and rightly to judge them 1 Kings 8. And the Prophet David saith Be ye learned you that judge the Earth Whereto if they also would endeavour to have knowledge in the Principles and Grounds of the Laws of their own Country which they in due time inherit they shall be much the more enabled to govern their Subjects and it is a point of Wisdom in such to acknowledge that Rex datur propter Regnum non Regnum propter Regem And to move the Princes to these things there is an excellent Book Dialogue-wise between a Prince a King's Son of this Realm and Sir Iohn Fortescue a Judge entituled De laudibus Legum Angliae Many that have been Heirs apparent to the Crown of England ever since the Norman Conquest have been taken away either by their natural deaths or by violence during the life of their Ancestors so that they have not attained to the Crown William the only Son of Henry the First was drowned in his passage from Normandy his Father reigning Eustace King Stephen's only Son died mad to the great grief of the King his Father William the eldest Son of King Henry the Second died in the Fourth year of his Age and in the Third year of his Fathers Reign King Henry the Second's Son called Curt-Mantel was in his Father's life time crowned King by the Name of King Henry the younger but died in the life time of his Father Geffrey the fourth Son of the said King died during the Reign of Richard Coeur de Leon his third Brother which King Richard had no Son and so Geffrey was Heir apparent to the Crown King Edward the First had Issue Iohn Henry and Alphons but all three died in their Childhood in their Father's life Edward the Black Prince of famous memory eldest Son to King Edward the Third died before his Father Richard the Third had Issue only one Son named Edward who died without Issue Arthur the eldest Son and Heir apparent to King Henry the Seventh died in the life time of his Father Henry Prince of Wales eldest Son to King Iames also left the World before his Father These Examples may serve as a Mirror for all succeeding Princes and others to see how transitory the Glory of this World is whereof the saying of the Princely Prophet David may never be out of remembrance Psal. 82. I have said ye are Gods and ye are all the Children of the most High but ye shall die like men and ye Princes like others Also divers other Heirs apparent and those that have been in possession of their Crowns have been defeated by Usurpers And namely Robert Duke of Normandy eldest Son to William the Conqueror was defeated of his Birth-right by his two younger Brethren William Rufus and Henry successively one after another and after Six and twenty years Imprisonment having both his Eyes put out died in the Reign of his Brother Henry Maud the sole Daughter of the said King Henry was defeated of her Birth-right to the Crown by Stephen the Son of her Fathers Sister Arthur the only Son and Heir of Geffrey the fourth Son to Henry the Second was next Heir to the Crown after the death of his Uncle Richard the first King of that Name who died without Issue his Father being dead before but his Uncle Iohn Son to the said Henry the Second defeated him not only of his right to the Kingdom but also of his Life and that by starving him King Edward the Second was deposed by his eldest Son who in the life time of his Father took upon him to be the King of England Richard the only Son to Edward the black Prince and next Heir to the Crown after the death of his Grandfather King Edward the Third was defeated both of his Crown and Life by Henry of Lancaster Son to Iohn of Gaunt who was but the fourth Son of King Edward the Third yea although Lionel the third Son of the said King Edward had Issue Philip his only Daughter who by consequence was next to the Crown before the Issue of Iohn of Gaunt which Philip was married to Edward Mortimer Earl of March from whom the House of York by the name of Edward the Fourth are lineally descended For William of Hatfield second Son to King Edward the Third died young without Issue King Henry the Sixth having but one Son named Edward he was slain in the life time of his Father and the King himself deposed by Edward the Fourth and murthered in the Tower So the Act of Parliament made between them for an indented Peace exemplified in our Books of Law Edward and Richard the two only Sons to Edward the Fourth after the descent of the Crown and before the Coronation of Prince Edward were both of them murthered in the Tower by their Uncle Richard Duke of Glocester who thereupon took upon him the Crown although there were remaining alive divers Daughters of the late King Edward the Fourth During these troublesome and tragical times each of the Kings prevailing attainted the other their Adversary of High Treason by Act of Parliament intending utterly to disable them and make them to be incapable by the Law of the Crown And it is a matter worthy of Observation how the Hand of God did not forget to pursue Revenge in these Cases for William Rufus died without Issue Henry his Brother had a Son and one Daughter but his Son died an Infant and his only Daughter Maud was defeated of her Birthright by Stephen King Iohn who defeated Arthur his Nephew of his Birthright and Life lived in continual Wars never enjoyed Peace but was driven to submit himself and subject his Kingdom to the Pope In his time Normandy which King William the First brought with him and which in five Descents continued in actual Obedience of the Kings of England was in the sixth year of his Reign lost until King Henry the Fifth recovered it again and left it to King Henry the Sixth who again lost it in the Eight and twentieth year of his Reign as doth appear both in our Chronicles and in our Books of Law Concerning the violence done to King Henry the Second albeit Edward his Son enjoyed a long and prosperous Reign yet his Successor King Richard was in the like violent manner imprisoned deprived and put to death King Henry the Fourth by whom King Richard was deposed did exercise the chiefest Acts of his Reign in executing those who conspired with him against King Richard His Son had his Vertue well seconded by Felicity during whose Reign by the means of Wars in France the humour against him was otherwise imployed But his next Successor King Henry the Sixth was in the very like manner deprived and together with his young Son Edward imprisoned and put to death by King Edward the Fourth This Eward died not without suspicion of poyson and after his death his two Sons were likewise
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
of Nature which he hath vouchsafed unto us because in truth in the Succession of Children a mortal man is made as it were immortal neither unto any mortal men at leastwise unto Princes not acknowledging Superiors can any thing happen in worldly causes more happy and acceptable than that their Children should become notable in all vertuous Goodness Manners and Increase of Dignity so as they which excel other men in Nobleness and Dignity endowments of Nature might not be thought of others to be exceeded Hence it is that we that great goodness of God which is shewed unto us in our felicity not to pass in silence or to be thought not to satisfie the Law of Nature whereby we are chiefly provoked to be well affected and liberal to those in whom we behold our Blood to begin to flourish coveting with great and fatherly affection that the perpetual memory of our Blood with Honour and increase of Dignity and all praise may be affected our well beloved Son Charles Duke of Albony Marquis of Ormond Count of Ross and Lord of Ardmannoth our second begotten Son in whom the Regal form and beauty worthy Honour and other gifts of Vertue do now in the best hopes shine in his tender years We erect create make and ordain and to him the Name Style State Title and Dignity and Authority and Honour of the Duke of York do give to him that Name with the Honour to the same belonging and annexed by the girding of the Sword Cap and Cirtlet of Gold put upon his Head and the delivery of a Golden Verge we do really invest To have and to hold the same Name Style State Dignity Authority and Honour of the Duke of York unto the aforesaid Charles our second begotten Son and to the Heirs male of his Body lawfully begotten for ever And that the aforesaid Charles our second begotten Son according to the decency and state of the said Name of Duke of York may more honourably carry himself we have given and granted and by this our present Charter we confirm for us and our Heirs unto the aforesaid Duke and his Heirs for ever out of Farms Issues Profits and other Commodities whatsoever coming out of the County of York by the hands of the Sheriff of the said County for the time being at the times of Easter and Michaelmas by even portions For that express mention of other Gifts and Grants by us unto the said Duke before time made in these Presents doth not appear notwithstanding these being Witnesses The most excellent and most beloved Henry our Firstbegotten Son Ulrick Duke of Hellet Brother of the Queen our beloved Wife and the Reverend Father in Christ Richard Archbishop of Canterbury Primate and Metropolitan of all England and also our beloved and faithful Counsellor Thomas Lord Elsmere our Chancellor of England Thomas Earl of Suffolk Chamberlain of our Houshold and our dear Cosin Thomas Earl of Arundel our welbeloved Cosins and Counsellors Henry Earl of Northumberland Edward Earl of Worcester Master of our Horse George Earl of Cumberland and also our welbeloved Cosins Henry Earl of Southampton William Earl of Pembroke and also our welbeloved Cosins and Counsellors Charles Earl of Devonshire Master of our Ordinance Henry Earl of Northampton Warden of the Cinque Ports John Earl of Warwick Robert Viscount Cranborne our Principal Secretary and our well-beloved and faithful Counsellor Edward Lord Zouch President of our Council within the Principality and Marches of Wales and also our welbeloved and trusty Robert Lord Willoughby of Eresby William Lord Mounteagle Gray Lord Chandois William Lord Compton Francis Lord Norris Robert Lord Sidney our welbeloved and faithful Counsellor William Lord Knowles Treasurer of our Houshold and our welbeloved and faithful Counsellor George Dunbar Lord of Barwick Chancellor of our Exchequer Edward Bruce of Kinloss Master of the Rolls of our Chancery and also our welbeloved and faithful Thomas Eareskine of Birketon Captain of our Guard James Lord Barmermoth and others Given by our Hand at our Palace at Westminster in the Second year of our Reign of England c. King Edward the Third in the third year of his Reign by his Charter in Parliament and by Authority of Parliament did create Edward his eldest Son called the black Prince Duke of Cornwal not only in Title but cum feodo with the Dutchy of Cornwal as by the Letters Patents may appear in Coke's Eighth Part in the Pleadings Habendum tenendum eidem Duci ipsius haeredum suorum Regum Angliae filiis Primogenitis dicti loci Ducibus in Regno Angliae ei haereditarie successuris So that he who is hereditable must be Heir apparent to the King of England and of such a King who is Heir to the said Prince Edward and such a one shall inherit the said Dukedom which manner of limitation of Estate was short and excellent varying from the ordinary Rules of the Common Law touching the framing of any Estate of Inheritance in Fee-simple or Fee-tayl and nevertheless by the Authority of Parliament a special Fee-simple is in that case only made as by Judgment may appear in the Book aforesaid fol. 27. and 27 Ed. 3.41 b. And ever since that Creation the said Dukedom of Cornwall hath been the peculiar Inheritance of the King 's eldest Son during the life of the King his Father so that he is ever Dux natus non creatus and the Duke at the very time of his Birth is taken to be of full and perfect Age so that he may send that day for his Livery of the said Dukedom And the said black Prince was the first Duke of England after the Conquest For though Bracton who made his Book in the Reign of King Henry the Third saith sunt sub rege Duces as appeareth that place is to be understood of the ancient Kings before the Conquest For in Magna Charta which was made in the Ninth of King Henry the Third we find not the name Duke amongst the Peers and Nobles there mentioned for seeing the Norman Kings themselves were Dukes of Normandy for a great while they adorned none with this Honour And the eldest Son of every King after his Creation was Duke of Cornwall as for example Henry of Monmouth eldest Son of King Henry the Fourth Henry of Windsor eldest Son of King Henry the Fifth Edward of Westminster eldest Son of King Edward the Fourth Arthur of Winchester eldest son of King Henry the Seventh and Edward of Hampton first Son of King Henry the Eighth But Richard of Burdeaux who was the first Son of Edward the black Prince was not Duke of Cornwall by force of the said Creation For albeit after the death of his Father he was Heir apparent to the Crown yet because he was not the Firstbegotten Son of a King for his Father died in the life of King Edward the Third the said Richard was not within the limitation of the Grant and Creation by
Baron which always stands afterwards for the head place of the Barony whereof the said Baron and his Heirs shall be surnamed and called and shall continue that name of place although he do alien away the same as aforesaid Some others are named with the Title of Lord as Sir Hugh Bramsteed by Writ of the 27 th of Henry the Sixth was styled Lord Veysey Iohan. Beauchamp Domino de Beauchamp Iohanni Domino de Clynton To some others the Writ is directed only by their Name without any addition of place or dignity as William de Lovell Mil. William Devereux Mil. c. But the Nature Quality and Addition of those Barons by Writ is aptly discovered by the debate of a Question moved often amongst men and spoken of concerning the continuance and descent of a Barony by Writ which Question for the more orderly disposition thereof I shall divide into these Heads or Points Question First Whether a Barony by Writ may descend from the Ancestor to the Heir or not Secondly Admit such a Barony may descend then Whether it doth descend to the Heirs although not so near as the Heir Female Thirdly Admit it doth descend to the Heirs Female then Whether may the Husband of such an Heir Female take upon him the Name Style and Dignity of such a Barony in right of his Wife or no Those therefore that maintain the Negative that such a Barony shall not descend do strengthen themselves with these or the like Arguments viz. The first Argument Whether a Barony by Writ may descend Nobility and Honour which are given in respect of Wisdom Connsel and Advise cannot extend to any other person or descend from one man to another for it is a Rule in Law That Privilegium personae personam sequitur extinguitur cum persona But such is the Dignity of a Baron therefore it is reason that it should not descend from the Ancestor to the Heir The second Argument Again If the calling of the Parliament by Writ be the sufficient instrumental cause of such Nobility to the Ancestor the not calling of the Heir is a loss of that Nobility For if the Heir have defects of Nature in him as Idiotsie Frensie Leprosie or the like whereby he is become unfit for Counsels and Conversations for what reason should he enjoy that Dignity whereof he is either unworthy or uncapable for the effect hath no place where the cause faileth and hereof they conclude that such Dignities of Baronies by Writ should not descend If on the contrary part the Affirmation is thus proved Honour which is given in respect of Wisdom and Vertue of him on whom it was first bestowed is not only a due recompence for himself whilst he lived but also a memorable Reward thereof to Posterity The words of Cicero to this effect are most excellent Homines bonos semper nobilitate favimus quia utile republicae est nobiles esse homines dignos majoribus suis quia valere debet apud nos claros hujusmodi senes fuisse è republica moveretur memoria mortucrum Honor. Therefore this kind of Honour is Patrimonial and Hereditary for things which are once granted unto a man by the King for his Honour are not again to be returned to his loss and disgrace or to his Heirs The second Argument Secondly If the Infamy of the Father be a blot to the Posterity as the Wiseman Solomon affirmeth The Children complain for an ungodly Father they are reproved for his sake and for that also the Law of the Realm doth corrupt the blood of the Posterity by and upon the Offence of the Ancestor Reason would also be that the Honour of the Ancestor should be likewise Honour to the Posterity for contraries do also carry their contrary Reason For the determination whereof 't is to be noted that diversity of Reason hath bred diversity of Opinion Some there are that do speak That the Dignity of a Baron by Writ is not discendable from the Ancestor unto the Heir unless the Heir be likewise called by Writ to Parliament and that then it becometh an Inheritance and not before But this Assertion is repugnant to the nature of Descent which for the most part doth carry a Patrimony descendable by act of Law presently upon the death of the Ancestor unto the Heir not at all Wherefore the Custom of the Country and the manifest Presidents do prove that this kind of Baronies doth descend from the Ancestor to the Heir and there needeth not any word of Heir in the Writ of Summons only one President there is in a special Writ sometime directed to Sir Henry Bromfleet in the 27 th of Henry the Sixth wherein he was styled Lord Veysey and wherein there are these words inserted Volumus tamen vos haeredes vestros de corpore vestro ligitime enatos Barones de Veysey existentes Wherefore it is very true that when the Heir of any such Baron by Writ is called to the Parliament that his Descent of Honour is thereby established and approved of by the gracious Judgment of our Sacred Sovereign So it is also true that if it shall stand with his Majesties pleasure that such an Heir shall not be summoned at all then that Nobility is much impaired and in a manner extinguished in the censure of all men for that it hath no other original but by a Writ of Summons from the which by the Judgment of the Supream Sovereign he is excluded As to the second principal point Whether the Barony by Writ may descend to the Heir Female it shall not be amiss likewise to shew the Reasons on either part that by conflict of Argument the truth may the better be discovered Those that maintain the Affirmative part do say That in reason the Sex of the Heir Female ought no more to barr her Dignity than the Nonage of the Heir Male ought to barr him though during his Nonage he be unable to do the Service But as the Service of the one is for time forborn so the Sex of the other may at all times be supplied by the maturity of her Husbands Offices of Honour which do much import the Commonweal being passed by Inheritance do descend to the Heir Female as the Office of the High Constableship of England which descended unto the Daughter of Hum. de Bohun Earl of Hereford and Essex Also the Office of the Lord Steward descended to Blanch Daughter of Henry Earl of Lancaster The like may be said of the Office of Earl-Marshal which descended by an Heir Female to the House of Norfolk All which Offices are as unsit to be exercised by a woman as for a Woman to be summoned by Writ to the Parliâ—ment as a Baroness c. Many Noble Houses also in England do support and lawfully bear the Dignity of a Baronage unto them descended by a Woman The first Argument contra They which stand of the Negative part in this Controversie do encounter their
Authority of Parliament made in the Eleventh of King Edward aforesaid and therefore to supply that defect in the Fifth of Edward the Third he was created Duke of Cornwall by special Charter Elizabeth eldest Daughter of King Edward the Fourth was not a Dutchess of Cornwall although she was the Firstbegotten Daughter of Edward the Fourth for the Limitation is to the First-begotten Son Henry the Eighth was not in the life of his Father King Henry the Seventh after the death of his eldest Brother Arthur Duke of Cornwall by force of the said Creation for although he was sole Heir apparent yet he was not his eldest begotten Son And the Opinion of Stamford a Learned Judge hath been That he shall have within his Dukedom of Cornwall the King's Prerogative because it is not severed from the Crown after the form as it is given for none shall be Inheritor thereof but the King 's of the Realm For example whereas by Common Law if a man hold divers Mannors or other Lands or Tenements of divers Lords all by Knights Service some part by Priority and ancient Feoffment and other Land by Posterity and a later Feoffment and the Tenant so seized dieth and his Son and Heir within Age in this case the custody and wardship of the Body and his marriage may not be divided amongst all the Lords but one of them only shall have right unto it because the Body of a man is intire And therefore the Law doth say That the Lord of whom some part of those Lands are holden by Priority and by the same Tenure of Chivalry shall have it except the King be any of the Lords for then though the Tenant did purchase that Land last yet after his death the King shall be preferred before any of the other Lords of whom the Tenant did hold the Priority And so shall the Duke of Cornwall in the same Case have the Prerogative if his Tenant die holding of him but by posterity of Feoffment for any Tenure of his Dutchy of Cornwall although the same Duke is not seized of any particular Estate whereof the Reversion remaineth in the King for the Prince is seized in Fee of his Dukedom as beforesaid Iohn of Gaunt the fourth Son of King Edward the Third took to Wife Blanch Daughter and Heir of Henry Duke of Lancaster who had Issue Henry King of England so that the said Dutchy of Lancaster did come unto the said Henry by descent from the party of his Mother and being a Subject he was to observe the Common Law of the Realm in all things concerning his Dutchy For if he would depart in Fee with any thereof he must have made Livery and Seisin or if he had made a Lease for life reserving Rent with a Re-entry for default of payment and the Rent happen to be behind the Duke might not enter without making his Demand or if he had alienated any part thereof whilst he was within Age he might defeat the Purchaser for that Cause and if he would grant a Reversion of an Estate for life or years in being there must also be Attornment or else the Grant doth not take effect But after that he had deposed King Richard the Second and did assume the Royal Estate and so had conjoyned his Natural Body in the Body Politick of the King of this Realm and so was become King then the possession of the Dutchy of Lancaster was in him as King but not as Duke which degree of Dignity was swallowed up in that of the King for the lesser must always give place to the greater And likewise the Name of the Dutchy and the Franchises Liberties and Jurisdictions thereof when in the King's Hands were by the Common Law extinct and after that time the possessions of the Dutchy of Lancaster could not pass from Henry the Fourth by Livery of Seisin but by his Letters Patents under the Great Seal without Livery of Seisin and with Attornment And if he make a Lease for Life being Duke reserving a Rent with a Re-entry for default of payment and after his Assumption of the Crown his Rent happen to be unpaid he might Re-enter without Demand for the King is not bound to such personal Ceremonies as his Subjects are Therefore to have the said Dutchy to be still a Dutchy with the Liberties to the same as it was beâ—ore and to alter the order and degree of the Lands of the Dutchy from the Crown the said King Henry the Fourth made a Charter by Authority of Parliament which is entituled Charta Regis Hen. 4. de separatione Lancastriae à corona authoritate Parliamenti Anno Regni sui primo as by the Tenor thereof may appear And so by Authority of that Parliament the said Dutchy with all the Franchises and Liberties was meerly resigned from the Crown and from the Ministers and Officers thereof and from the Order to pass by such Conveyance which the Law did require in the possessions of the Crown But now the possessions of the Dutchy by force of the said Statute stood divided from the Crown and ought to be demeaned and ordered and pass as they did before Henry the Fourth was King yet there is no Clause in the Charter which doth make the person of the King who hath the Dutchy in any other Degree than it was before But things concerning his pleasure shall be in the same estate as they were before such separation insomuch as if the Law before the Charter by Authority of Parliament adjudged the person of the King always of full Age having regard unto his Gifts as well of the Lands which he doth inherit in the right of his Crown or Body Politick it shall be so adjudged for the Dutchy Land after the said Statute for the Statute doth go and reach unto the Estate Order and Condition of the Lands of the Dutchy but doth not extend unto the person of the King who hath the Lands in points touching his person Neither doth that distinguish or alter the preheminences which the Law doth give to the person of the King For if King Henry the Fourth after the said Act had made a Lease or other Grant of parcel of the Dutchy by the Name of Henry Duke of Lancaster only it had been void for it should have been made in the Name of Henry the Fourth King of England And thus stood the Dutchy of Lancaster severed from the Crown all the Reign of Henry the Fourth Henry the Fifth and Henry the Sixth being politickly made for the upholding of the Dutchy of Lancaster their true and ancient Inheritance however the right Heir to the Crown might in future time obtain his right thereunto as it happened in King Edward the Fourth's time but after the said King Edward obtained his right unto the Crown in Parliament he attainted Henry the Sixth and appropriated and annexed the said Dutchy again to the Crown as by the Statute thereof made in the first of the King's Reign