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
Scotch Kings to our gracious Soveraign Charles the Second into whose Veins all those several streams of Royal Blood are conjoyned to unite those jarring Nations into one Body under a Head unto which each one may justly claim an interest God hath thus restored our ancient Government and seated our Soveraign in the Throne of his Ancestors giving him a power just and absolute as well to preserve as curb his people being not only Major singulis but Major universis and his power is super totam Rempublicam which I thus prove Either the whole power of the Commonwealth is in one or not if not then he is no absolute King or Monarch but if he be as all must yield a Monarch I ask if there be a power in the Commonwealth which is not in him Is it subordinate to his power or not If subordinate than his power is above that power and so super totam Rempublicam Major universis if it be not then there are a simul semel to Supream Civil Powers in the same individual Kingdom and Gubernation and yet divided against it self which is most absurd and impossible This in Answer to a monstrous Pamphlet which the lasciviousness of our late unhappy Wars produced which asserted Rex minor universis But the Divine Providence hath I hope put a period to all such Trayterous Tenents and concluded such Disputes by Acts of Parliament so that no person for the future shall dare to question who hath the right of making Peace or War the power of Militia by Land and Sea all strong Holds and Forts c. being the inherent right of the English Monarchs by their Prerogative Royal. The King is God's Vicegerent and ought to be obeyed accordingly If good he is a blessing if bad a judgment and then against whom we are to use no other weapons but prayers and tears for his amendment He is styled Pater Patriae Caput Reâ—publicae and because the protection of his Subjects belongs to his care and office the Militia is annext to his Crown that the Sword as well as the Scepter may be in his hand The Parliament then all Roman Catholicks in the behalf of Henry the Eighth writ to the Pope declaring that his Royal Majesty is the Head and the very Soul of us all his Cause is the Cause of us all derived from the Head upon the Members his Griefs and Injuries are ours we all suffer equally with him Camden in his Britannia fol. 100. calls the King the most excellent part of the Commonwealth next unto God He is under no Vassuage he takes his Investure from no man Rex non habet Superiorem nisi Deum satìs habet ad poenam quod Deum expectat ultorem In England France Spain c. Kings are styled Dei Gratia c. and as the French King is said to be Rex Francorum Christianissimus the most Christian King of France The King of Spain the most Catholick The Emperour the Defender of the Church So the Kings of England by a Bull from Pope Leo the Tenth sent to King Henry the Eighth for a Book of Controversie written by him against Luther have the Title of Defenders of the Faith and by Act of Parliament he is declared Supream Head of the Church of England It is the manner also for Kings to write in the plural Number which is God's own style Mandamus Volumus c. and in the Scripture we find them called Gods in which sense they may be styled Divi or Dii quia Dei Vicarii Dei voce judicant Our Lawyers also say Rex est persona mixta cum Sacerdote habet Ecclesiasticam Spiritualem Iurisdictionem This shews the King's power in Ecclesiastical Causes being anoynted with Oyl as the Priests and afterwards the Kings of Israel were which signifies his person to be both Sacred and Spiritual And therefore at the Coronation hath put upon him a Priest's Garment called the Dalmatica or Colobium and other such Vests And before the Reformation the King as a Spiritual person received the Sacrament in both kinds He is capable of holding Tithes all Extra-Parochial Tithes some Proxies and other Spiritual profits belong to the King The Ceremonies at the Coronation of the King are many and with us in England more than in many other Countries As the Anoynting with Oyl which is proved by Mr. Selden to be of above one thousand years standing the Crown set upon his Head with many Religious Ceremonies besides the Ensigns of Regality which are a Ring to signiâ—ie his Faitâ—fulnes a Bracelet for Good Works a Scepter for Justice a Sword for Vengeance Purple Robes to attract Reverence and a Diadem triumphant to blazon his Glory It was the saying of Thomas Becket Archbishop of Canterbury Inunguntur Reges in Capiâ—e etiam pectâ—re brachâ—is quod significat gloriam sanctitatem forâ—â—nâ— inâ—â—n King's are Anoynted on the Head to signiâ—â—e their Glory on the Breast to Emblematize their Sanctity and on their Arms to declare their power He is crowned with an Imperial Crown the Crown set on his Head by the Arch-bishop of Canterbury a prerogative belonging to that See as it is in Spain to Toledo in France to Rheims and in Sueden to Vpsalia But this Imperial Crown hath not been long in use amongst us though our Kings have had Imperial Commands as over Scotland Ireland Man and other Isles being in a manner like that of an Earls now Neither is it found that any such thing as a Diadem was at all in use until the tune of Constantine the Great For before the distinction was some kind of Chaplet or rather a white silk Fillet about the Head which was an ordinary way to distinguish them And we read that Alexander the Great took off his white Diadem to cure the madness of Seleucus The first King that was crowned with this Imperial Crown floried and arched was Henry the Third but some say Henry the First and indeed it is left in dispute However it is very probable and plain That the ancientest Ensign of Regal Authority was the Scepter which is every where spoken of both in Scripture and Prophane History There is another Ensign of their Authority which is a Globe or Mound with a Cross which hath been in use amongst us ever since Edward the Confessor's time which is placed in the left hand as is seen in most of their Coyns The Cross denoting his Faith the Globe his Empire by Sea and Land as 't is said of Iustinian the Emperor who was the first that ever used it The Office of the King of England according to Fortescue Pugnare bella populi sui eos rectissime judicare to fight the Battels of his people and to see Right and Justice done unto them or more particularly as is promised at the Coronation to preserve the Rights and Priviledges of Holy Church the Royal Prerogatives belonging to the Crown the Laws and Customs of the
of the most noble order of the Garter c â— The Right Reverend Father in God Henry Compton by Divine permission Lord Bishop of London Deane of his matys Chappel and one of the Lords of his most honble privy Councell brother to the Rt. honble Iames Earle of Northampton The Right Reverend Father in God Nathaniel Crew by divine permission Lord Bishop of Durham Clerk of the Closetâ— to his Maty and one of the Lords of his most honble privy Councell son to the Rt. honble Iohn Ld. Crew Baron of Steane The Right Reverend Father in God Iohn Pearson by Divine permission Lord Bishop of Chester The Right Reverend Father in God Peter Gunning by Divine permission Lord Bishop of Ely OF THE Lords Spiritual CHAP. VIII ACCORDING to the Laws and Customes of this Realm many are the Ecclesiastical Dignities and Priviledges belonging to the Bishops and Clergymen who in all succeeding Ages have been reverenced with the greatest observance imaginable as being acknowleded by all good Christians to be those Messengers sent and particularly appointed by God to take care of our Souls The Subjects of England are either Clergy or Laymen both which are subdivided into Nobility and Commons Thus we find in our Parliament the Lords Spiritual and Temporal make the Upper House the Commons Spiritual viz. the Clergy elected to sit in Convocation who once had place and suffrage in the Lower House of Parliament and the Commons Temporal viz. the Knights and Burgesses make the Commons Most evident it is by the Consent of all the Councils Fathers Histories and Universal Tradition That for the first Fifteen hundred years continuance of Christianity there is no Example to be found of any Church governed by any Authority Ecclesiastick but that of Episcopacy they were ordained by the Apostles themselves to be their Successors in Christ's Church to have a vigilant eye over the Pastors and Teachers under them as to their Lives and Doctrine for the preservation of Truth and Peace the prevention of Scandal suppression of Heresie and Schism and to have a care of their Flock to bring them to Salvation 'T is not therefore without reason that in all times they have been the first of the two Divisions of the people the Clergy and Laity and as Spiritual Barons take place of Temporal they take their name from the Saxon word Biscoep a Super-intendent or Overseer They are three ways Barons of the Realm viz. by Writ Patent and Consecration They precede all under the Degree of Viscounts and are always placed upon the King 's right hand in the Parliament House They have the Title of Lords and Right Reverend Fathers in God And their Sees by the piety of former times are endowed with fair Revenues for the due administration of what belongs to their places And to keep them from corrupt and sinister affections the King 's most Noble Progenitors and the Ancestors of the Nobility and Gentry have sufficiently endowed the Church with Honour and Possessions Many Priviledges and Immunities were likewise granted to them and the Clergy by the Saxon and Danish Kings as coyning of Money conferring the Order of Knighthood c. which hath been long since appropriate to the Crown Thus Laufranck Archbishop of Canterbury made William the Second Knight in the life time of his Father Of Priviledges remaining some belong to to the Archbishops some to the Bishops as they are so and some to them and all other of the Clergy We read of three Archbishopricks in England before the Saxons came amongst us viz. that of London York and Carleon upon Vske But Christianity being thence expelled by the Pagans the succession of those Sees ceased till it pleased God to restore the Light of his Gospel to the blind Saxons which in this Kingdom had planted themselves by the Ministration of St. Augustin who first preached Salvation to them at Canterbury and was there buried for whose sake they removed the Episcopal See from London unto Canterbury and in process of time placed another Archbishop at â—ork which two Provinces included England and Wales and have Five and twenty Bishops under them Six and twenty Deans of Cathedrals and Collegiate Churches Sixty Arch-Deacons Five hundred forty four Prebendaries many rural Deans and about Ten thousand Rectors and Vicars of Parishes The Archbishop of Canterbury was anciently the Metropolitan of England Scotland Ireland and the Isles adjacent and was therefore sometime styled a Patriarch and had several Archbishops under him His style was Alterius orbis Papa orbis Britannici Pontifex The Date of Records in Ecclesiastical Affairs ran thus Anno Pontificatus nostri primo c. He was Legatus Natus which power was annexed to that See near One thousand years ago whereby no other Legat or Nuntio from Rome could exercise any Legantive power without the King 's special Licence In General Councils he had place before all other Archbishops at the Pope's right Foot Nor was he respected less at home than abroad being according to the practise of most other Christian States reputed the second person in the Kingdom and named and ranked before the Princes of the Blood By the favour of our present King he still enjoys divers considerable preheminences as Primate and Metropolitan of all England hath power to summon the Arch-bishop of York and the Bishops of his Province to a National Synod is primus par Regni preceding not only Dukes but all the Great Officers of the Crown next to the Royal Family He is styled by the King Dei Gratia Archiopiscopus Cantuarii Writes himself Divina Providentia as doth the Archbishop of York other Bishops write Divina permissione and hath the Title of Grace given him as it is to Dukes and Most Reverend Father in God His Office is to Crown the King and wheresoever the Court shall happen to be 't is said the King and Queen are Speciales Domestici Parochiani Domini Archiepisc. Cant. The Bishop of London is accounted his Provincial Dean the Bishop of Winchester his Chancellor and the Bishop of Rochester his Chaplain He hath the power of all the probate of Wills and granting Letters of Administration where the party hath bona notabilia that is Five pounds worth or above out of the Diocess wherein he dieth or Ten pounds worth within the Diocess of London By Statute of Hen. 8. 25. he hath power to grant Licences Dispensations c. and holds divers Courts of Judicature viz. his Courts of Arches of Audience his Prerogative Court and his Court of Peculiars And he may retain and qualifie eight Chaplains which is more by two than a Duke can do The Arch-bishop of York was also Legatus Natus and had that Authority annexed to his See He had all the Bishopricks of Scotland under his Province till the year 1470. He hath the place and precedency of all Dukes not of the Royal Blood and of all great Officers except only the Lord Chancellor or Lord Keeper
and twenty Burgesses for Common-Councel a Recorder c. sâ—nds Burgesses to Parliament The Arms born by this Town is a Castle triple-towred having on the dexter side the Sun in its glory and on the sinister a Crescent on the top of the two fronting Towers stand two Watchmen with this Inscription upon the Ring of the Seal Sigillum Ballivi Burgensium Warwici And notwithstanding this fatal overthrow â—o much of the Town was continued till the Reign of Richard the Second who began in 1377 that it paid to the King in Fee-farm Rent twenty Marks per Annum at 2 d. a Burgage which amounts to two thousand two hundred Burgages besides other Houses But in 1388. as appears by Records die Martis in festo Sancti Stephani Martyris which was about the eleventh of Richard the Second it was so burn'd down and wasted by the Scots that of that Rent upon several Inquisitions found and returned there remained to the King only two Marks per Annum so that nine parts in ten were utterly destroy'd But notwithstanding this great devastation that was never repaired it doth still retain its ancient Priviledges which are in every respect the same with York as appears from the confirmation of Henry the Third in whose time here was an Exchequer called by the Name of Scaccarium de Appleby and King Iohn â—s Charter which I have seen wherein is expressed and firmly commanded That his Burgers of Appleby shall have and enjoy all the Liberties and free Customes which his Burgers of York have well and peaceably freely and quietly fully wholly and honourably with a Prohibition That none shall attempt to disturb them thereof And also That they shall be free from Toll Stallage Pontage and Lestage all England over praeterquam in Civitate London nisi forte Cives Eobor ' quietantias inde habent libertates suas in Civitate London which exception doth very much confirm and strengthen their Priviledges to them The Corporation consists at present of a Mayor with two Bailiffs a Court of Aldermen twelve in number a Recorder Common-Councel and Serjeants at Mace with their Attendants And if the Town were able to bear it might take the same Priviledges with York in every thing according to their Charter which has been confirmed by all the succeeding Kings of England and if any would know what those Priviledges are more particularly I referr him to York where he may possibly meet with satisfaction In the mean time take these which are now in practice at Appleby viz. They have power to Arrest for any Sum without limitation To elect and send two Burgesses to Parliament To acknowledge Statute-Merchant before the Mayor To take Toll both in Fairs and Markets To seize Felons goods Felones de se Waifes Strayes Forfeitures and Escheats all which do belong to the Mayor for the time being who takes place of the Judges of Assize as the Lord Mayor of York is wont to do Their Aldermen are some of them Gentlemen of the Country for the greater honour and credit of the Town who in time of their Majoralty have their Propraetors or Deputies there The present Mayor and Aldermen for the present year are Iohn Thwaites Esquire Mayor Lancelot Machell of Gackanthorp Esq who was first Mayor after the King's return and tore in pieces Oliver's Charter in open Court before he would accept of that Office which he had declined all Oliver's time Richard Brathwate of Warcop Esq and Justice of Peace who contested with the Judges and took place of them Virtute Chartae Robert Hilton of Morton Esquire Justice Jf Peace Edward Musgrave of Askeby Esq oustice of Peace Thomas Warcop of Colby Gentleman Iohn Routlidge of 〈…〉 Gent. Alderman Leonard Smyth Alderman William Smyth Alderman Robert Harrison Alderman Iohn Lawson Alderman Thomas Robinson Alderman Iohn Atkinson which six last are all of Appleby Appleby was very eminent for its Loyalty in the late Civil Warrs and most of the Aldermen except those whom Oliver Cromwell obtruded upon them suffered many imprisonments during his Tyranny and so likewise did most of the Gentry round about for it is the glory of the County of Westmerland that there was not one Person of quality in it who took up Arms against his King and but two or three in Cumberland A TABLE OF THE Contents or Heads Of the several CHAPTERS IN THE TREATISE OF Honour and Nobility FIRST PART HONOVR MILITARY OF Warr and the causes thereof fol. 3 Of Souldiers 4 Of Embassadors or Legats 5 Of Warr and the inclination of the English to it ibid. Of Captains Generals Marshals and other chief Commanders 7 SECOND PART HONOVR CIVIL CHap. I. Of Honour general and particular 11 Of Gentry and bearing of Arms 12 Principles of Honour and Vertue that every Gentleman ought to be endowed with 13 Of precedency ibid. Chap. II. Of the King or Monarch of Great Britain 19 Chap. III. Of the Prince 24 Chap. IV. Of Dukes 32 The form of a Patent of the Duke of York temp Jacobi 33 Ceremonies to be observed in the Creation of a Duke 36 Chap. V. Of Marquisses 37 Chap. VI. Of Earls 39 Chap. VII Of Viscounts 44 Chap. VIII Of Lords Spiritual 45 Chap. IX Of Barons 48 The definition of a Baron ibid. The Etymology of the name of a Baron ibid. The antiquity and dignity of Barons and the sundry uses of the Name 49 The tenor and proper signification of the word Baron ibid. Chap. X. Barons of Tenure 50 Chap. XI Barons by Writ 52 Chap. XII Barons by Patent 56 Chap. XIII Priviledges incident to the Nobility according to the Laws of England 59 Certain Cases wherein a Lord of the Parliament hath no priviledge 65 Chap. XIV Nobility and Lords in reputation only 68 Chap. XV. Of the Queen Consort and of Noble Women 69 70 Ladies in reputation 75 Chap. XVI Of Knighthood in general 77 Chap. XVII Knights of the Garter 79 Chap. XVIII Of Knights Bannerets 84 Chap. XIX Of Baronets 85 The president of the Patent of Creation of Baronets 88 The Catalogue of the Baronets of England according to their Creations 91 Chap. XX. Knights of the Bath 105 A Catalogue of the Knights of the Bath made at the Coronation of King Charles II. 107 Chap. XXI Of Knights Batchelors 108 Observations concerning Knights Batchelors 116 Of degrading of Knights 117 Chap. XXII Knights of the round Table 118 Chap. XXIII Knights of the Thistle or of St. Andrew 120 Chap. XXIV Orders of Knighthood in Palestine and other parts of Asia 121 Knights of the holy Sepulchre in Jerusalem ib. Knights Hospitalers of St. John Baptist in Jerusalem now called Knights of Malta 122 Knights Templars ibid. Knights of St. Lazarus 123 Knights of St. Bass ibid. Knights of St. Katherine at Mount Sinai ibid. Knights of the Martyrs in Palestine ibid. Orders of Knighthood in Spain Knights of the Oak in Navar 124 Knights of the Lily in Navar ibid. Knights of the Band 125 Knights of
the City of London â—â—â—â—â—e his Coronation which was on Monday tâ—e 22 th of April 1661. First the Duke of York's Horse Guard Messengers of the Chambers in their Coats with the King's Arms before and behind Esquires to the Knights of the Bath in number 140. Knight Harbinger and Serjeant Porter Sewers of the Chamber Gentlemen Ushers Quarter Waiters in Cloaks Clerks of the Chancery 6. Clerks of the Signet 4. Clerks of the Privy Seal in Gowns Clerks of the Council 4. in Cloaks Clerks of the Parliament 2. Clerks of the Crown 2. in Gowns Chaplains having Dignities 10. in Gowns and square Caps The King's Advocate The King's Remembrancer Masters of the Chancery The King's Counsel at Law 2. in Gowns The King's puisne Serjeants 2. The King's Attorney The King's Solicitor The King's eldest Serjeants 2. in Gowns Two Secretaries of the French and Latin Tongue in Gowns Gentlemen Ushers Daily Waiters in Cloaks Sewers in Ordinary in Cloaks Carvers in Ordinary in Cloaks Cup-bearers in Ordinary in Cloaks Esquires of the Body 4. The Effigies of the Right honble Heneage Lord Finch Baron of Daventry Lord High Chancellor of England one of the Lords of the most honble Privy Councell to King Charles ye. second Anno DnÌ„i 1676. The Effigies of the Right honble Anthony Earle of Shaftsbury Baron Ashley of Wimbourne St Giles Ld. Cooper of Pawlet Ld. High Chancellor of England Ld. Leiutenant of the County of Dorset and â—one of the Lords of ye. most honble Privy Councellâ— to King Charles yâ— 2d. Anno Domini â—673 Masters of standing Offices Tents 1. in Cloaks Masters of standing Offices Revels 1. in Cloaks Masters of standing Offices Ceremonies 1. in Cloaks Masters of standing Offices Armory 1. in Cloaks Masters of standing Offices Wardrobe 1. in Cloaks Masters of standing Offices Ordnance 1. in Cloaks Masters of the Requests 4. Chamberlains of the Exchequer 2. in Gowns Gentlemen of the Privy Chamber in Cloaks Knights of the Bath 68. in long Mantles with Hats and Feathers The Knight Marshal in a rich Coat Treasurer of the Chamber Master of the Jewel House in Cloaks Barons younger Sons Viscounts younger Sons Barons of the Exchequer 3. in Robes and Caps Justices of the King's Bench and Common Pleas 6. in Robes Caps and Collars Lord Chief Baron of the Exchequer Lord Chief Justice of the Common Pleas in Robes Caps and Collars Master of the Rolls in a Gown Lord Chief Justice of the King's Bench in his Robe Cap and Collar Knights of the Privy Council in Cloaks Barons eldest Sons Earls younger Sons Viscounts eldest Sons Kettle Drums The King's Trumpeters in rich Coats The Serjeant Trumpeter with his Mace Two Pursuevants at Arms in their Coats of Arms. Barons 51. in Cloaks Marquisses younger sons Earls eldest Sons Two Pursuevants at Arms in their Coats of Arms. Viscounts 7. Dukes younger Sons Marquisses eldest Sons Two Heralds in their Coats with Collars of SS Earls 32. in Cloaks Lord Chamberlain of the King's Houshold with his white Staff Dukes eldest Sons Two Heralds in Coats with Collars of SS Two Marquisses in Cloaks Two Heralds in Coats with Collars of SS The Duke of Buckingham Clarencieux King at Arms in Coats with Collars of SS Norroy King at Arms in Coats with Collars of SS The Lord Treasurer with his white Staff The Lord Chancellor with the Purse The Lord High Steward with his white Staff Two Persons one representing the Duke of Aquitain and the other the Duke of Normandy in broad Caps and Robes of Ermyn The Gentleman Usher with the black Rod on the right hand bareheaded in a rich Cloak Garter King of Arms bareheaded in his Coat and Collar of SS The Lord Mayor of London carrying the City Scepter on the left hand bareheaded The Duke of York Serjeants at Arms with their Maces 8 on a side from the Sword forwards in rich Cloaks The Lord Great Chamberlain on the right hand The Sword born by the Earl of Suffolk Marshal pro tempore The Earl of Northumberland Lord Constable of England pro tempore on the left hand Gentlemen Pensioners with Pole-Axes The King Gentlemen Pensioners with their Pole-Axes Esquires Footmen The Master of the Horse leading a spare Horse The Vice Chamberlain Captain of the Pensioners Captain of the Guard The Lieutenant of the Pensioners the King's Horse Guard The Lord General 's Horse Guard As in Man's Body for the preservation of the whole divers Functions and Offices of Members are required even so in all well governed Common-wealths a distinction of persons is necessary and the policy of this Realm of England for the Government and Maintainance of the Common-wealth hath made a threefold Division of persons that is to say First the King our Soveraign Monarch under which Name also a Soveraign Queen is comprised as it is declared by the Statute made in the first of Queen Mary cap. 1. Parliam 2. Secondly the Nobles which comprehend the Prince Dukes Marquisses Earls Viscounts and Lords Spiritual and Temporal Thirdly the Commons by which general word is understood Baronets Knights Esquires Gentlemen Yeomen Artificers and Labourers It is observed that our Law calleth none Noble under the Degree of a Baron and not as men of Forreign Countries do use to speak with whom every man of Gentle Birth is counted Noble For we daily see that both Gentlemen and Knights do serve in Parliament as Members of the Commonalty Neither do these words the Nobles the high and great men in the Realm imply the Person and Majesty of the King but with the Civilians the King is reckoned among the Nobility The Nobility are known by the general Name of Peers of the Realm or Barons of England for Dukes Marquisses Earls and Viscounts did anciently sit together in the King 's great Council of Parliament as Barons and in right only of their Baronies And therefore by the general Name of Barons of the Realm and for the Baronage thereof we underâ—â—and the whole Body of the Nobility the Parliament Robes of the Dukes differing nothing from the Barons but that they wear the Guards upon their Shoulders three or four folds For though Dukes Marquisses Earls and Viscounts in their Creations are attired with Ornaments of Silk and Velvet yet in Parliament they use the same that Barons do made of Scarlet with divers differences of white Fur set as Fringes or Edgings on their Shoulders and although they sit in right of their Baronies yet they take their places according to their degrees of Dignity And hence it is that those bloody Civil Wars concerning the Liberties granted in the Great Charter both in the time of King Iohn and Henry the Third his Son prosecuted by all the Nobility some few excepted are called in our Histories the Barons Wars Neither have the Spiritual Lords any other Title to that preheminence but by their ancient Baronies For although originally all the possessions of Bishops Abbots and Priors were given and holden in Frank Almoign most of
their Tenures were altered viz. Baronia as appeareth in Matthew Paris A. 1070. fol. 66. and of that Tenure have continued ever since as you may read by the Constitutions of Clarendon in the Reign of Henry the Second and in Glanvile and Bracton But the Tenures of all Abbots and Priors were extinguished by the uniting and coming of them to the Crown by the Statute of Dissolution of Monasteries For though the Nobility of England differ in Titles and certain Ceremonies yet a Baron enjoyeth the same priviledges And by experience it is found That Dukes and all other degrees of Nobility in Cases Criminal are tryed by Barons together with Marquisses Earls and Viscounts as their Peers and Peers of the Realm Nobilitas generally is of the word Nosco signifying in common phrases of speech Men of Generosity of Blood and Degree and therefore it is said Vir nobilis idem est quod notus per omnia or a vulgatus But especially it is applyed and used to express the reward of Vertue in honourable measure Ageneris claritate which being in part of distributive Justice remaineth with the highest Soveraign annexed to the Imperial Crown of this Realm For as Vertue is the gift of none but of God so the reward thereof with Honour cannot be the gift of any but the Supreme Governour being God's Vicegerent on Earth But when Honour and Arms be bestowed upon any if there shall arise contention between Competitors for the same the ancient policy of this Realm hath ordained a Special Court the Judges whereof in all times having been Right Honourable Personages viz. the Lord High Constable and the Earl Marshal and in latter times the Judge thereof only the Earl Marshal The Jurisdiction of the Court consisâ—eth in the Execution of that part of distributive Justice which concerneth the advancement and support of Vertue Nevertheless some men there are not duly considering of what principle and parts the Laws of this Realm do consist have laboured to prove that the Questions and Controversies of Nobility and Arms should not be determined by the Laws of the Realm but by the Civil Law framing to themselves many Arguments to prove the same but being of small value I pass them over The Common Laws as also the Laws of Charity used in the Marshals Court do prohibit any Subject of this Realm to receive Titles of Honour and Dignity by gift or donation from a Forreign Prince King or Emperor for it is a thing greatly touching the Majesty of the King and State of his Kingdom Est vis Majestatis inter insignia summae potestatis And if a man shall bring an Action and in the Writ is styled by such a Forreign Title the Defendant may plead in Abatement of his Writ That he is no Duke Marquis Earl or Baron whereupon if the Plaintiff as demanded take Issue the Issue shall not be tryed by the Jury but by the Records of Parliament wherein he faileth And if any English man be created Earl of the Empire or of any other Forreign Nation and the King also do create him into any Title of Honour in England he shall be named in all Judicial proceedings only by such Name and Title as he hath received from the King of this Realm whose Subject he is And if by the King of England he be not advanced to Title of Honour then he shall bear the name only of his Baptism and Surname unless he be a Knight For experience teacheth that Kings joyned in League together by certain mutual and as it were natural power of Monarchies according to the Laws of Nations have dismissed one anothers Subjects and Ambassadors graced with the Dignity of Knighthood A Duke of Spain or of another Forreign Nation cometh into England by the King 's safe Conduct in which also the King doth style him Duke according to his Creation nevertheless in all proceedings in the King's Courts he shall not be so stiled by his Title of Dignity And although the said Noble person be also by the King's Letters Patents and by his Forreign Name and Title of Dignity made Denizon for that is the right Name so called because his Legitimation is given to him Or if he be naturalized by Authority of Parliament wherein he seemeth to be in all things made as a Subject born yet shall he not be styled by his Foreign Titles of Dignity And so it is if a Nobleman of France or elsewhere come into England as Ambassador and by lawful Marriage hath a Son and the Father dieth the Son is by Birth a Natural Englishman yet he shall not bear the Title of Honour of his Father and the reason thereof is because that Title of Nobility had its Original by a French King and not by any natural Operation which thing is well proved both by Authority of Law and Experience in these days If a Postnaâ—us of Scotland or Ireland who in these days is a Natural Subject to the King of England or if any of his Posterity be the Heirs of a Nobleman of Scotland or Ireland yet he is none of the Nobility of England But if that Alien or Stranger born a Scot be summoned by the King 's Writ to Parliament and therein is styled by his Foreign or other Title whereunto he is invested within England by the King 's Grant then and from thenceforth he is a Peer of this Realm and in all Judicial and Legal Proceedings he ought to be so styled and by no other Name And it was the Case of Gilbert Humfrevile Earl of Angus in Scotland of it appertaineth to the Royal Prerogative of the King to call and admit an Alien born to have place and voice in his Parliament at his pleasure although it is put in practice very rarely and that for great and weighty Considerations of State And if after such Parliamentary Summons of such a Stranger born question do arise and the Issue be whether he is of that Title or no it may well be tryed by the Record which is the only lawful tryal in that Case But there is a Diversity worthy of Observation for the highest and lowest Degrees are universal and therefore a Knight Engglish or Stranger born is a Knight in all Nations in what place soever he received his Title and Dignity and so ought of right and by Law to be named in the King's Courts as aforesaid Also if the Emperor the King of Denmark or other Foreign King come into this Realm by safe conduct as he ought for a Monarch or absolute Prince though he be in League cannot come without the King's Licence and safe Conduct but any Subject to such a Foreign King in League may come without Licence In this Case he shall sue and be sued by the Name of Emperor or King or else the Writ shall abate There is a notable President cited out of Fleta where treating of the Jurisdiction of the King's Court of Marshalsea it is said And these things he might
extraordinary great He only hath the patronage of all Bishopricks none can be chosen but by his Conge d'Esâ—ire whom he hath first nominated none can be consecrated Bishop or take possession of the Revenues of the Bishoprick without the King 's special Writ or Assent He is Guardian or Nursing Father of the Church which our Kings of England did so reckon amongst their principal Cares as in the Three and twentieth year of King Edward the First it was alledged in a pleading and allowed The King hath power to call a National or Provincial Synod and with the advice and consent thereof to make Canons Orders Ordinances and Consâ—itutions to introduce into the Church what Ceremonies he shall think sit to reâ—orm and correct all Heresies Schisms and pâ—nish Contempts c The King hath power not only to unite consolidate separate inlarge or contract the limits of any old Bishoprick or other Ecclesiastical Benefice But also by his Letters Patents may erect new Bishopricks as Henry the Eighth did Six at one time and the late King Charles the Martyr intended to do at St. Albans for the Honour of the first Martyr of England and for the contracting the too large extent of the Bishoprick of Lincoln In the 28. of Eliz. when the House of Commons would have passed Bills touching Bishops granting Faculties conferring Holy Orders Ecclesiastical Censures the Oath Ex Officio Non-Residency c. The Queen being much incensed forbade them to meddle in any Ecclesiastical Affairs for that it belonged to her prerogative His Majesty hath also power of Coynage of Money of pardoning all Criminals of dispensing with all Statutes made by him or his Predecessors which are Malum prohibitum and not Malum in se. The diversity between these terms is set down in the Statute made Term. Mich. Anno 11 H. 7. 11. Thus where the Statute doth prohibit a man to coyn Money if he do he shall be hanged this is Malum prohibitum for before the said Statute it was lawful but not after and for this Evil the King may dispense But Malum in se neither the King nor any other can dispense with As if the King would give leave to rob on the High-ways c. this is void yet after the Fact done the King may pardon it So it is in Ecclesiastical Laws for conformity to the Liturgy c. which are Malum prohibitum and the King may by his Prerogative Royal as well dispense with all those penal Statutes as with Merchants to transport Silver Wooll and other prohibited Commodities by Act of Parliament The King cannot devest himself or his Successors of any part of his Royal Power Prerogative and Authority inherent and annext to the Crown nor bar his Heir of the Succession no not by Act of Parliament for such an Act is void by Law These Prerogatives do of right belong to the Crown of England which I have collected out of the most Authentick Modern Authors And to compleat this Chapter I shall proceed to his Superiority and Precedency The King of England acknowledgeth no Superior but God alone not the Emperor Omnem potestatem Rex Angliae in Regno suo quam Imperator vendicat in Imperio yet he giveth Precedency to the Emperor Eo quod antiquitate Imperium omnia regna superare creditur Touching our King's Supremacy before any other these Reasons are offered First Lucius King of this Land was the first Christian King in the World as also Constantine our Country-man the first Emperor that publickly planted Christianity Secondly The King of England is anoynted as no other King is but France Sicily and Ierusalem Thirdly He is crowned which honour the Kings of Spain Portugal Navarr and divers other Princes have not The honour of Precedency amongst Christian Kings is often disputed by their Ambassadors and Commissioners representative at General Councils Diets publick Treaties and other Honourable Assemblies at Coronations Congratulations in Foreign Countries c. which by the best Information I can get is thus stated As to England next to the Imperial Ministers the French take place as being the largest Realm in Christendom and most Noble since Charles le mayne their King obtained the Imperial Diadem the second place in the Western Empire was undisputably the right of our English Kings so enjoyed for hundreds of years 'till Spain grown rich and proud by the addition of the Indies claimed the priority yet could not gain it till their Charles the Fifth was Elected Emperor but after his Resignation the Controversie renewed upon the Treaty of Peace between Queen Elizabeth and Philip the Third King of Spain at â—oloign in France Anno 1600. Our Ambassadors were Sir Henry Nevil Iohn Harbert and Thomas Edmonds Esquires and for Spain Balthazer de Coniga Ferdinando Carillo Io. Ricardett and Lewis Varreyken The English challenged precedency as due to them before the Emperor Charles his time as doth appear by Volatteram in the time of our Henry the Seventh when the like difference being in question 't was joyntly referred to the Pope who adjudged to England the most Honourable place But the Spaniards refusing to stand to that old Award or to admit of an equality the Treaty of Peace broke up neither hath any certain Resolution been hitherto taken in the matter as ever I heard of OF THE PRINCE CHAP. III. THE King 's Eldest Son and Heir apparent from the Day of his Birth is entituled Prince of the Latin word quasi Principalis post Regem The first that we read of in England was Edward eldest Son to King Henry the Third since which time the eldest Son of the King hath been by Patent and other Ceremonies created Prince of Wales and Earl of Chester and Flint By Patent also Edward the Third in the Eleventh year of his Reign added the Dukedom of Cornwal to the Principality of Wales and Anno Regni 36. he makes his eldest Son Edward the Black Prince Prince of Aquitain for which he did Fealty and Homage at Westminster Sed tamen Principatum Walliae Ducatum Cornubiae Comitatum Cestriae Cantii non reliquit Walsing fol. 172. Since the Union of England and Scotland his Title hath been Magnae Britanniae Princeps but ordinarily Prince of Wales As eldest Son to the King of Scotland he is Duke of Rothsay and Seneschal of Scotland from his Birth And so long as Normandy remained in the possession of the English he had always the style of Duke of Normandy At his Creation he is presented before the King in Princely Robes who putteth a Coronet upon his Head a Ring on his middle Finger a Verge of Gold in his Hand and his Letters Patents after they are reaâ— His Mantle which he wears in â—arliament is once more doubled upon the shoâ—â—â—â—rs than a Dukes his Cap of State indenteâ—â—nd his Coronet formerly of Crosses and Flower de lis mixed But since the happy Restauration of his Majesty it was solemnly ordered that the Son and Heir apparent
disinherited imprisoned and murthered by their cruel Uncle the Duke of Glocester who being both a Tyrant and Usurper was justly encountred by King Henry the Seventh in the Field So infallible is the Law of Justice in revenging Cruelties and Injuries not always observing the present time wherein they are done but often calling them into reckoning when the Offenders retain least memory of them But as the saying is Ex malis moribus bonae leges oriuntur so their Tragical and Miserable Combustions have occasioned that the Law hath established more certain Resolutions in all these cases and pretences against the right Heir to the Crown than before For first though a common Opinion was conceived that a Conqueror might freely dispose of the Succession of that Estate which he had obtained by the purchase of his Sword which was the Title pretended for William Rufus yet now in our Books this difference is taken for Law viz. between the Conquest of a Kingdom from a Christian King and the Conquest of a Kingdom from an Infidel For if a King come to a Christian Kingdom by Conquest seeing he hath Vitae necis potestatem he may at his pleasure alter and change the Laws of that Kingdom but until he doth make an alteration thereof the ancient Laws do stand and therefore the case of Rufus the ancient Law of this Realm being That the eldest Son should inherit and that a King in possession cannot devise the same by his last Will or by other Act therefore the said William Rufus was no other than a Usurper But if a Christian King should Conquer a Kingdom from an Infidel and being then under his subjection there ipso facto the Laws of the Infidels are abrogated for that they be not only against Christianity but against the Law of God and Nature mentioned in the Decalogue and in that case until certain Laws be established amongst them the King by himself and such Judges as he shall appoint shall judge them and their causes according to natural Equity in such sort as Kings in ancient times did within their Kingdoms before any certain municipal Laws were given And if a King have a Kingdom by Title of Descent there seeing by the Laws of that Kingdom he doth inherit the Kingdom he cannot change those Laws of himself without consent of Parliament Also if a King have a Christian Kingdom by Conquest as King Henry the Second had Ireland after that King Iohn had given unto them being under his Obedience and Subjection the Laws of England for the Government of that Country no succeeding King could alter the same without Parliament In Succession of Kings a question hath been Whether the King who hath had Sons both before and after he came to the Crown which of them should succeed he that was born before as having the prerogative of his Birthright or he that was born after And for each Reasons and Examples have not been wanting For Xerxes the Son of Darius King of Persia being the eldest Son after the enthroning his Father carried away the Empire from his Brother Arthemones or Artobazanes who was born before his Father came to the Royal Possession thereof So Arceses the Son of another Darius born in the time of his Fathers Empire carried away the Garland from his Brother Cyrus born before his Father came to the Empire So Lewis Duke of Millain born after his Father was Duke was preferred to the Dukedom before his Brother Galiasius born before the Dukedom But notwithstanding these Examples and the Opinion of sundry Doctors to the contrary common use of Succession in these latter days hath been to the contrary and that not without good reason for that it is not meet that any that hath right to any Succession by the prerogative of their Birthright such as all elder Brothers have should be put by the same And this was the pretence of Henry the First against Robert his eldest Brother Also sundry Contentions have risen in Kingdoms between the Issue of the eldest Son of the King dying before his Father and the second Brother surviving who should Reign after the death of the Father the Nephew challenging the same unto him by the Title of his Fathers Birthright and by way of Representation Cok. part 3. cap. 4. the other claiming as eldest Son to his Father at the time of his death Upon which Title in old time there grew a Controversie between Arcus the Son of Arrotatus eldest Son of Cleomenes King of Lacedemonia and Cleomenes second Son of Cleomenes Uncle to the said Arcus But upon debate of the matter the Senate gave their Sentence for Arcus against Cleomenes Besides Enominus King of Lacedemon having two Sons Polydectes and Licurgius Poyldectes dying without Children Licurgius succeeded in the Kingdom but after he had understood that Polydectes Widow had a Child he yielded the Crown to him wherein he dealt far more religiously than either did King Iohn or King Richard the Third For King Iohn upon the like pretence not only put by Arthur Plantaginet his eldest Brother's Son from the Succession of the Kingdom but also most unnaturally took away his life And King Richard the Third to come to the Crown did most barbarously not only slay his two innocent Nephews but also defamed his Mother in publishing to the World that the late King his Brother was a Bastard Our Stories do obscurely note that Controversie of like matter had like to have grown between King Richard the Second and Iohn of Gaunt his Uncle and that he had procured the Counsel fo sundry great Learned Men to this purpose but that he found the hearts of divers Noblemen of this Kingdom and especially the Citizens of London to be against him whereupon he desisted from his intended purpose and acknowledged his Nephews Right And the reason of the Common Law of England is notable in this point and may be collected out of the ancient Authors of the same Glanvile lib. 7. cap. 1. Bracton lib. 7. c. 30. and by Brittan fol. 119. For they say Whosoever is Heir to another aut est haeres jure proprietatis as the eldest Son shall inherit only before his Brothers aut jure representationis as where the eldest Son dieth in the life of his Father his Issue shall inherit before the youngest Son for though the youngest sit magis propinquus yet jure representationis the Issue of the eldest Son shall inherit for that he doth represent the person of his Father And as Bracton saith jus proprietatis which his Father had by his Birthright doth descend unto him aut jure propinquitatis ut propinqui jus excludit remotum remotus remotiorem aut jure sanguinis And yet Glanvile Lord Chief Justice under King Henry the Second seemeth to make this questionable here in England Who should be preferred the Uncle or the Nephew Also it hath been resolved for Law That the possession of the Crown purgeth all defects
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
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
He hath the Title of Grace and Most Reverend Father in God He hath the Honour to Crown the Queen and to be her perpetual Chaplain He is also styled Primate of England and Metropolitan of his Province He hath the Rights of a County Palatine over Hexamshire in Northumberland He may qualifie Chaplains and hath divers other Prerogatives which the Archbishop of Canterbury hath within his own Province but Durham being one hath in many things a peculiar Jurisdiction exempted from the Archbishop Priviledges belonging to the Bishops are as followeth IN their own Court they have power to judge and pass Sentence alone without any Colleague which is not done in any other Court And therefore the Bishops send sorth their Citations in their own Names not in the King 's as the Writs in other Courts run They may depute their Authority to another as doth the King either to their Suffragan-Bishops their Chancellors Commissaries or other Officers which none of the King's Judges can do In whatever Prince's Dominions they come their Episcopal Dignity and Degree is owned they may confer Orders c. whereas no Lay-lord is acknowledged but in the King's Dominions who gave him the Title None of them can be Indicted of any Crime before a Temporal Judge without especial Licence from the King A severe penalty to be inflicted on them that raise any Scandal or false Report In a Tryal where a Bishop is Plaintiff or Defendant the Bishop may as well as any Lay-lord challenge the Array if one Knight at least be not returned upon the Jury In Criminal Tryals for life all Bishops are to be tryed by their Peers who are Barons and none under that Degree to be impanelled but anciently they were exempted from any Tryal by Temporal Judges In Parliament they may Vote in any thing but in sentence for Life or loss of Member they being by Common Law to absent themselves and by Common Law to make Proxies to Vote for them They are freed from all Arrests Outlawries Distresses c. They have liberty to hunt in any of the King's Forests or Parks to take one or two Deer coming or going from the King's Presence and to have Wine free from Impost c. Their Persons may not be seized for Contempt but their Temporalities only and their word only is to be taken and their Certificate allowed in the Tryal of Bastardy Heresie c. And such respect has been shewed their Persons that an Offence by a Clergyman to his Bishop is called Episcopicide and punished as Paracide equal to petty Treason Every Bishop may qualifie as many Chaplains as a Duke They are all Barons and Peers of the Realm and have place in the upper House of Parliament as afore noted and take place according to Seniority of their Consecration except London Durham and Winchester who precede by Statute made in the Reign of King Henry the Eighth It will not be amiss to speak somewhat of the Immunities common to all Ecclesiasticks as well Commons as Lords Spiritual as followeth All Suffragan Bishops Deans Archdeacons Prebends Rectors and Vicars have priviledge some by themselves others by proxy to sit and vote in the lower House of Convocation No Subsidy or other Tax can be imposed upon them without their own consent No Clergyman may be compelled to undergo any personal Service in the Commonwealth nor to serve in the Wars or to bear any servile Office They are free from the King's Purveyors Carriers Posts c. for which they may demand a protection from the King cum clausula nolumus They are not obliged to appear at the Sheriffs Turns or Views of Frank pledge nor are impanelled to serve upon Inquests at Assizes or elsewhere If a Clergyman acknowledge a Statute his Body shall not be taken thereupon for the Writ runs Si Laicus sit c. Their Goods are discharged from Tolls and Customs si non exerceant Merchandizas de eisdem but they must have the King 's Writ to discharge them As the Clergymen are exempted from the Wars being by reason of their Function they are prohibited the wearing a Sword so every man in the order of Priesthood is debarred the Order of Knighthood of the Sword cum eorum militia sit contra mundum carnem diabolum saith Sir Iohn Fern yet laying aside their Cures and also lying themselves to a secular life they have been admitted Dei natalin saith Matth. Paris Iohannem de Gatesden clericum multis ditâ—atum beneficiis sed omnibus resignatis quia sic oportuit Baltheo cinxit militari These and many other Rights Liberties and Priviledges belong to the Clergy of England all which the King at his Coronation solemnly swears to preserve to them And they have been confirmed by above Thirty Parliaments and if any Act be made to the contrary it is said to be Null by the Statute of the 4 th of Edward the Third OF BARONS CHAP. IX AMONGST the Nobles and Honourable Persons Barons have the next place And first of the Dignity and Degrees of a Baron in general Secondly of the Etymology of the Name Thirdly of the Antiquity thereof and of the divers uses in former Ages Fourthly of the Division and the consideration of the several kinds of Barons And lastly a Declaration of the divers and sundry Priviledges allowed them and the rest of the Nobles by the Laws of this Realm The Definition or Description of a Baron IT is a certain Rule in Law Definitiones in jure sunt periculosissimae earum est enim 〈◊〉 non subverti possunt and therefore I do not often find any Definition or Description of a Baron delivered by Writers nevertheless in this our Kingdom it is my Opinion that a Baron may be described in a generality answerable unto every special kind thereof in this manner A Baron is a Dignity of Nobility and Honour next unto the Viscount And the Books of Law do make a difference between Dukes Marquisses Earls and Viscounts which are allowed Names of Dignity and the Baron for they affirm That such a Baron need not to be named Lord or Baron by his Writ but the Duke Marquiss Earl or Viscount ought to be named by their Names of Dignity Cambden fol. 1692. saith That our Common Laws do not allow a Baron one of the Degrees of Nobility But I take it to be understood of Barons by Tenure or Barons by Writ only For the Title of a Baron by Patent is in his Letters Patents under the Great Seal of England adorned by the name of Status Gradus Dignitas and therefore is requisite to be named And such Dignities are a parcel of the Name of the Pohenor as well as the Title and Style of a Duke Marquiss Earl or Viscount And although there may be conceived this Difference last mentioned between the Baron by Tenure or Writ and the Baron by Patent yet they being all Members of the higher House of Parliament they are thereby equally made Noble
by birth though they have no other Creation but shall not be partaker of these or other Priviledges incident to the Lords of the Parliament Thirdly Those that are Barons and of the Nobility of Scotland or Ireland if upon the like Offence committed in England they be apprehended in England they shall not have this Tryal by Peers no though they were born in England for they received their Dignity from a King of England of other Nations But if the King of England do at this day create one of his Subjects of Scotland or Ireland an Earl Viscount Baron or other Peer of this Realm or by his ordinary Writ of Summons under his Great Seal do call him to the Upper House of Parliament and assign him a place and to have Voice free amongst the Lords and Peers there assembled he shall be partaker with them in all priviledges And thus much concerning the restraint of the Priviledges in respect of the persons 39 Ed. 3. And touching the manner of proceeding it appeareth by the said Statute of Magna Charta chap. 29. That a Peer of the Realm shall be tryed by his Peers only in case where he is indicted at the King's Suit of Treason or Felony for the words of the Statute be Nec super eum ibimus c. But if any Appeal of Murther of Felony be sued by any common person against a Peer of the Realm he shall be tryed by common persons and not by his Peers And so was Fines Lord Dacres tryed in Appeal of Murther The Nobility of this Realm do enjoy this priviledge That they are not to be impannelled on any Jury or Inquest to make tryal or inquiry upon their Corporal Oaths between party and party for they may have a Writ for their Discharge to the Sheriff But it is a Rule in Law Vigilantibus non dormientibus subveniant jura For if the Sheriff have not received any such Writ and the Sheriff have returned any such Lord on Juries or in Assize c. and they thereupon do appear they shall be sworn if they do not appear they shall lose their Issues 35 Hen. 6. and in such case they must purchase a Writ out of the Chancery reciting their priviledges directed to the Justices before whom such Noble persons are so impannelled commanding to dismiss him or them that were so impannelled out of the said Pannel F.N.B. 165. This priviledge hath in two causes not been allowed or taken place 1. If the enquiry concern the King and the Common-wealth in any necessary and important degree or business of the Realm And therefore divers Barons of the Marshes of Wales were impannelled before the Bishop of Ely and other Commissioners of Oyer and Terminer to enquire of a notable outrage committed by Gilbert de Clare Earl of Glocester against Humphrey de Bohun Earl of Hereford and Essex and his Tenants in Wales in the Twelfth year of Edward the First where Iohn de Hastings Edmond de Mortimer Theobald Beardmoe and other Barons of the Marshes challenged their priviledges aforesaid and much insisted upon the same But it was afterwards answered by the Court as by the words in the Record appeareth The Barons aforesaid did persist in the Challenge and in the end both the said Earls between whom the said outrage had been perpetrated submitted themselves to the King's Grace and made their Fines Secondly This priviledge hath no place in case of necessity where the truth of the case cannot otherwise come to light for the words in the Writ in the Register are Nisi sua praesentia ob aliquam causam specialiter exigatur c. If any Nobleman do bring an Action of Debt upon Account in case where the Plaintiff is to be examined which is always intended to be upon Oath upon the truth of his cause by vertue of the Statute of the fifth of Henry the Fourth chap. 8. it shall suffice to examine his Attorney and not himself upon his Oath And this priviledge the Law hath given to the Nobility That they are not Arrested upon any Warrant of a Justice of Peace for their good behaviour or breach of Peace nor by a Supplicavit out of Chancery or from the King's Bench For such an Opinion hath the Law conceived of the peaceable disposition of Noblemen that it hath been thought enough to take their promise upon their Honour in that behalf And as in Civil Causes the like Rule doth the Court of Equity observe in Cases of Conscience for if the Defendant be a Peer of the Realm in the Star-Chamber or Court of Chancery a Subpaena shall not be awarded but a Letter from the Lord Chancellor or Lord Keeper in lieu thereof And if he do not appear no Attachment shall go out against him For in the Fourteenth year of Queen Elizabeth this Order and Rule was declared in the Parliament Chamber That an Attachment is not awarded by Common Law Custome or President against any Lord of Parliament And if he do appear and make his Bill of Complaint upon his Honour only he is not compelled to be sworn But by the Statute 5 Eliz. cap. 1. it is enacted That all Knights and Burgesses of Parliament shall take the Oath of Supremacy and so shall Citizens and Barons of the Cinque Ports being returned of the Parliament before they enter into the Parliament House which Oath shall be according to the tenor effect and form of the same as is set forth in the Statutue of 1 Eliz. Provided always that forasmuch as the Queens Majesty is otherwise sufficiently assured of the Faith and Loyalty of the Temporal Lords of her High Court of Parliament therefore this Act nor any thing therein contained shall not extend to compel any Temporal person of or above the Degree of a Baron of this Realm to take the said Oath nor to incur any penalty limited by the said Act for not taking the same If a Peer be sued in the Common Pleas in an Action of Debt or Trespass and Process be awarded by Capias or Exigit against him then he may sue out a Certiorari in the Chancery directed to the Justices of the Common Pleas testifying that he is a Peer of the Realm For unless the Court be certified by the King 's Writ out of the Chancery that the Defendant is a Peer of Parliament if a Capias or Exigit issue forth against him it is no Error neither is it punishable in the Sheriff his Bailiffs or Officers if they execute the said Process and arrest the body of such a Noble person for it appertaineth not to them to argue or dispute the Authority of the Court But if the Court be thereof certified as aforesaid they will award a Supersedeas which is in the Books of Entries in the Title of Error Sect. 20. And there are two Reasons or Causes wherefore no Capias or Exigit lieth against any Peer one because of the dignity of their persons and the other by intendment of Law
and is equal in power to a King as before noted She is her Husband 's Sovereign and he her Subject in England although he were an Emperor So was King Philip of Spain to Queen Mary and her Authority is included in the foregoing Chapter of Monarchy and therefore need not to be here repeated The second in Honour is the Queen Consort and the third the Queen Dowager or Queen Mother As from the benign influence of the glorious Planet the Sun all Creatures by God's decree in the order of Nature receive life and motion so from the King God's Vicegerent on earth all degrees of Nobility take their advance and dignity 'T is therefore requisite the King should as far excel his Subjects in Majesty and Splendor as doth the Sun the other Planets And as the Moon is the mirror of the Sun representing his Glory by Night so the Queen Consort the Counterpart of the Royal Majesty shines amongst us for whom and for whose Posterity the Nation is bound to send up their Prayers to God The Queen of England during the life of the King hath as high prerogatives and priviledges and liveth in as great state as any Queen in Europe She is reputed the second person in the Kingdom and the Law setteth so high a value upon her as to make it High Treason to conspire her death or to violate her Chastity She is allowed Regal Robes Ornaments and a Crown of the same form as an absolute Queen weareth and may be as formerly they were crowned with Royal Solemnity the performance of which Office properly belongeth to the Archbishop of York And although their Coronations of late have been disused yet they have as much honour and enjoy the same priviledges as if that Ceremony had been done And the manner and solemnity at the Coronation of a Queen is at large set down in most of our Chronicles and in particular in Holinshead and Stow upon the splendid Coronation of Anna Bulloign in the Reign of King Henry the Eighth to which I refer the Reader The Queen is permitted to sit in state by the King and to keep a distinct Court from the King 's although she be the Daughter of a Nobless and hath her Courtiers in every Office as hath the King though not altogether so many and hath her Yeomen of her Guard to attend her on foot and within doors and her Lifeguard of Horse for her state and security when she goeth abroad She hath her Attorney Solicitor and Counsel for the management of her Law concerns who have great respect shewed them being placed within the Barr with the King's Counsel in all Courts of Judicature Although she be an Alien and a Feme covert during the King's Life yet without any Act of Parliament for Naturalization or Letters Patents for her Denization she may purchase Lands in Feesimple make Leases in her own Name without the King hath power to give to sue and to contract Debts which by the Law is denied any other Feme Covert she may not be impleaded till first petitioned nor is the formality of fifteen days Summons to the Defendant needful if she be Plaintiff nor can she be amerced if she be Nonsuited in any Action she may present by her self to a Spiritual Benefice Anciently the Queens had a Revenue called Aurum Reginae that is the Queen's Gold which was the tenth part of what came to the King by the name of Oblata upon Pardons Gifts c. but of late they keep to their Dowry viz. Forty thousand pounds per Annum besides fines upon the renewing of Leases which said Dowry is as large as any Queens in Christendome The like honour and respect that is due to the King is exhibited to the Queen as well by Foreigners as by the King's Subjects as is also to the Queen Dowager who looseth not her Dignity or Reverence although she should marry a private Gentleman as did Queen Kathâ—rine Widow to King Henry the Fifth who after she was married to Owen Teudor Esquire maintained her Action at Law as Queen of England The present Queen Consort is the thrice Illustrious Donna Katherina Infanta Portuguesa whose vertue and true piety ought to be taken notice of in all Histories â—or succeeding Queens to trace her Noble footsteps whom God preserve The Queen Dowager takes place next to the Queen Consort and in the absence of the King her Son or in his minority is sometimes made Queen Regent or Protectress but this trust is usually by the King 's own command or at the request of the three States assembled in Parliament to prevent the danger of an usurpation of the Crown the like trust is sometimes imposed upon the Queen Consort in her Husband's absence as by King Henry the Eighth twice during his Wars in France Note That during the minority of the King of England whatsoever Laws are enacted in Parliament under a Queen Regent or a Protectress are no longer binding than till the King attains to full age after which he may revoke and make void by his Letters Patents under the Great Seal The Daughters of the Kings of England are all styled Princeâ—â—es The eldest is called the Princess Royal and hath an aid or certain rate of money paid by every Tenant in Capite Knights Service and Soccage towards her marriage Portion as was levied by K. Iames when he married the Princess Elizabeth and to violate her Chaâ—â—ity is by the Law adjudged High Treason Of Noble VVomen WOmen in England according to their Husbands Qualities are either Honourable and Noble or Ignoble Their Honourable Dignities are Princesses Dutchesses Marchionesses Countesses Viscountesses and Baronesses The Nobless as the French call them are all Knights Ladies who in all writings are styled Dames all Esquires and Gentlemens wives only Gentlewomen The third sort comprehends the Plebeans and are commonly called Goodwives Noble women are so by Creation Descent or Marriage Of women honourable by Creation are divers Examples of which the first as I remember that we read of was Margaret Countess of Norfolk created by Richard the Second Dutchess of Norfolk And many of them had their Honours granted by Patents to themselves and the Heirs Males of their Bodies to be begotten with special Clauses that their Heirs Male shall have voices in Parliament Creation money their Mothers Titles as if a Dutchess he a Duke and if a Countess he an Earl with the Ceremony of Mantle Surcoat Coronet c. The like Grant was to Anna Bulloign when she was created Marchioness of Pembroke by Henry the Eighth Of a later date was the Lady Finch made Countess of Winchelsey who had all the said priviledges granted to her and her Heirs Male The Dutchess of Buckingham also in the time of King Iames. And in our Age we have divers Noble Ladies advanced to degrees of Honour viz. the Countess of Guilford Groom of the Stool to the Queen Mother and a faithful Servant to her in her banishment being
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
House generally twice a week and keep Courts â—or the negotiation of their Affairs The government of this Company for this present year 1678. is committed to the care of Sir Nathaniel Herne Kt. Governour Major Robert Thomson Deputy-Governour and to the Right Honourable George Lord Berkeley Sir Samuel Barnadiston Sir Iohn Banks Baronets Sir William Thomson Sir Stephen White Sir Iames Edwards Sir Iohn Moore Sir Iohn Lethulier Knights Iosia Child Iohn Iolliff Iohn Bathurst Col. Iohn Clarke Iames Houblon Samuel Moyer Charles Thorold Thomas Papillon Esquires Mr. Christopher Boone Mr. Thomas Canham Mr. Ioseph Herne Mr. Nathaniel Letton Mr. Iohn Page Mr. Edward Rudge Mr. Daniel Sheldon and Mr. Ieremy Sambrook Assistants The Levant or Turky Company of Merchants which by their Discovery made the first Trade into the Seigniory of Venice and then into the Dominions of the Grand Seignior and including the Trade of the East-Indies which as then was undiscovered to us by Sea their goods being brought upon Camels and Ass-negroes to Aleppo and other parts of Turky but since the discovery of the Indies by Sea the Trade of this Company is something eclipsed for those Commodities which are now brought us by the East-India Company The benefit that ariseth to this Nation from this Company besides the imploying so many Ships and Seamen is in the Exporting and Importing of so many rich Commodities and in particular Clothes both died and drest at the least thirty thousand pieces yearly Kersies Lead Tinn Iron Steel Wire Pewter Furrs pieces of Eight Sugar Hides Elephants-teeth Brasill red and white Lead Indico Logwood Couchaniel Callicoes Spices and several Indian Commodities And for these they Import raw Silks of Persia Damascus Tripoli c. also Camblets Grograins Grograin-yarn Mohairs of Angor Woolls Cottons Cotton-yarn of Smyrna and Cyprus Galls of Mosolo and Toccat the Coralls and Oyls of Zant Zeffalonia Morea c. the Drugs of Egypt and Arabia also Turky-Carpets Cordovants Box-wood Rhubarb Worm-seed Sena Cummin-seed with several other rich Commodities This worshipful Company of Merchants was first Incorporated in the Reign of Queen Elizabeth and since confirmed by her Successors and have ample Priviledges and Immunities granted unto them as making of Laws and Orders for the well government of the said Fellowship power of deciding Controversies which arise in the said Company as to their Trade giving Oaths imposing Fines or imprisoning of Offenders according to their discretion the using of a Publick Seal and the bearing of a Coat of Arms as is set forth in the Escocheon of Arms aforesaid And for the better management of the Affairs of this Honourable Company they are governed by a Governour Deputy-Governour and Court of Assistants consisting of 18 who in the Month of February are Annually chosen by a general Consent out of the Members of the said Company and these meet and keep Courts monthly weekly or as oft as their occasions require for the management of the concerns of the said Society as binding and making free electing and sending over Consuls Vice-Consuls Factors and Servants to Constantinople Smyrna Aleppo Cyprus and such places where their Factories are kept The management of the Affairs of this Honourable Company for this present year 1678. is committed to the care and prudent government of the Right Honourable George Lord Berkeley of Berkeley whose worthy parts and great love to Traffick makes him every way so fit for it that the Company for these several years past have by an unanimous consent elected his Lordship their Governour Iohn Buckworth Esq Deputy Mr. Iohn Harvey Treasurer Mr. Thomas Vernon Husband Sir Iohn Lethulier Kt. Charles Thorold Esq Iohn Morden Esq Mr. Thomas Pilkington Mr. Richard Poulter Mr. Henry Griffith Mr. Iohn Morice Mr. Richard Onslow Mr. Thomas Hartopp Mr. Walter Conventrey Mr. William Hedges Mr. Iasper Clotterbook Mr. Abraham Wessell Mr. Richard Nicol Mr. Bernard Saltonstall Mr. George Carew The Russia or Moscovy Company of Merchant Adventurers for discovery of new Trades was first Incorporated in the beginning of the Reign of King Philip and Queen Mary upon the Discoveries of Lands Territories Seigniories and Isles by Seas lying Northwards North-eastwards and North-westwards from England and was afterwards confirmed by Act of Parliament in the eighth year of the Reign of Queen Elizabeth so that now they enjoy several Immunities and Priviledges as to raise Arms for the subduing of Countreys in the limits aforesaid and to enter thereon and set up the English Standards to make Acts and Ordinances for the good of the said Society so as they are not repugnant to the Laws of the Kingdom to punish Offenders by Fine or Imprisonment to use a Common Seal to bear a Coat of Arms c. as is here depicted The Commodities that this Company Exporteth are woollen Clothes both died and dressed of all sorts Kersies Bayes Cottons Perpetuances Fustians Norwich Stuffs Lace Thread Lead Tinn Pewter Allom Copper much defective Wines and Fruits not fit to be spent in this Kingdom with most sorts of English Goods And for these and the like they Import Pot-ashes Tarr Cordage Cable-yarn Tallow Wax Isinglass several sorts of Hides in the Hair Goat-skins undrest Cordovants tan'd Hides Hogs-brissles raw Silk Linseed Slod Bever wooll and wombs several sorts of rich Furrs Seal-skins Rhuberb Castorum Agarick Train-oyl Flax Hemp Linen Caviare Salmon Stockfish Codfish c. This worshipful Company of Merchants is governed by a Governour four Consuls and Assistants consisting of four and twenty who on the first of March are Annually chosen out of the Members of the said Society and for this present Year 1677. the management thereof is committed to the care of Iohn Iolliff Esq Governour Sir Benjamin Ayloff Baronet Samuel Moyer Esq Charles Thorold Esq Mr. Charles Carill Consuls to Mr. Edward Bell Treasurer and to Iohn Gould Esq Mr. Daniel Edwards Mr. Benjamin Glanvile Mr. Iames Young Mr. Benjamin Colds Mr. George Grove Mr. Francis Pargiter Mr. George Carew Mr. Heritage Lenten Captain Gervase Lock Mr. Edward Grace Mr. Thomas Thursby Mr. Thomas Hancox Mr. Iohn Ashby Mr. Richard Adams Mr. Edward Davenport Mr. Thomas Hawes â— Mr. George Cooks Mr. Gilbert Ward Mr. Ioseph Wolfe Mr. Iohn Porter Mr. Iohn Osborne and Mr. Iohn Penning Assistants The Eastland Company first Incorporated in the Reign of Queen Elizabeth and confirmed by King Charles the Second and by their Charter have ample Immunities and Priviledges granted to them and as large a scope to traffick in including the Trade of the Kingdoms Dominions Dukedoms Countreys Cities and Towns of Norway Swedeland and Poland with the Territories of the said Kingdoms as also in Lettow Liffland and Pomerland from the River Odera Eastwards and likewise in the Isles of Findland Eoland and Berâ—tholine within the Sound The Commodities by this Company Exported are Woollen Clothes Perpetuances Kersies Serges Norwich Stuffs Cottons Lead Tinn Pewter Stockins Hats Gloves together with several Southern and Eastern Commodities as Sattins Silks Spices
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
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