or imagine the death of the Kings eldest Sonne and Heir is crimen laesoe Majestatis high treason or if a man do violate the Wife of the Kings eldest Sonne and Heir it is high treason and see the Statute 20. Hen. 8. cap. 13. And so was the ancient common Law of England and not a new Law made by this Statute Cooks 8. Part. 28. 6. But this Statute is a manifestation and declaration or publication of the ancient common Law in this Case By a Statute made in the said 25. yeer of King Ed. 3. It is declared because the people be in ambiguity and doubt of the children born in the parts beyond the Sea out of the Kings Legiance of England should be able to demand any inheritance within the same Legiance or not Whereof a Petition was put into the Parliament late holden at Westminster the 17. yeer of the raign of our Soveraign Lord the King assembled in this Parliament and was not at the same time wholly assented Our Soveraign Lord the King willing that all doubts and ambiguities should be put away and the Law in this case declared and put iâ— a certainty hath charged the said Prelates Earls Barons and other wise men of his Councâ—ll assembled in this 〈◊〉 to deliberate upon this point who with one asseur hath said That the Law of the Crown of England is anâ— alwayes hath been such that Les Enfants du Roy the children of the King of England in whatsoeâ—eâ— part they be born in England or elsewhere be able and ought to bear the inheritance after the death of their Ancestors which Law our Soveraign Lord the King the said Prelates Earls Barons and other great mâ—n and all the Câ—â—amons assembled in this Parliament do approve and affirm for ever Note These words in the Statute Les Infants du Roy have briefly set down and in a vulgar manner for loquendum ut vulgus and not in form of exquisite pleading for sentiendum ut docti and therefore ought to be understood largely Cooks 7. part 11. 6. and as the Latine word liberi is with the Civilians Bract. lib. 2. cap. 29. hath these words Item descendit jus vero beredi ubicunque natus fuerit vel in utero matris intra mare vel ultra Nec potest sibi aliquis facere heredem quia solus Deus heredem facit The right doth descend unto the true Heir wheresoever he shall be born in the Womb of his Mother on this side the Sea or beyond no man can make an Heir unto himself because God only doth make the Heir read the Statute and Cook 7. part 18. a. Where you shall see that though generally the birth place is observable yet many times Legiance and obedience without any place within the Kings Dominions may make a Subject born for though we see by experience almost in every Parliament Ambassadors Merchants and the Kings souldiers doth shew there in such causes to have their children naturalized or made denizens yet that doth proceed onely of doubt and needlesse scâ—pulosity and ignorance of the Law even as we see men that are doubtfull desire to be resolved as may appear by sundry covenants in bargaining more then necessary And by renuing of Chartes though there be no forfeitures and by suing forth particular pardons when a generall is granted by Parliament Priests and Ministers sue to the Parliament for legitimation of their children And in the Articles confirmed by Parliament touching the marriage between Philip Prince of Spain and Queen Mary a speciall proviso was to barre him from being Tenant by the courtesie of the Crown in case he should have issue by her and survive which was superfluous because the Common-Law would have denyed this last point See the Lord Cromwels Speech in the case of the Postnati fol. 36 But note that if an Alien Enemy come into this Realm and his Wife Engiish or stranger be delivered of a childe within England this childe notwithstanding his birth-place is an Alien born for want of allegeance in the Parents Ibidem King Henry did create Edward his eldest Sonne the first Prince of Wales and did give unto him the dignity and Dominion of it to be holden of him and his Heirs Kings of England and after that time the eldest sonne of the King of England hath been Prince of Wales and as incident to the State and dignity of a Prince and might make Laws and Statutes and use jurisdiction and authority as amply as any King of that Nation could do Plowden Cooks 7. part 21. 6. Vide Mills fol. 312. 126. For Wales was a Kingdom in ancient time But in a Statute made in the 12. Ed. 1. Wales was united and incorporated into England and made parcell of England in possession And note in Tho. Mylls 112. the devise of the said King was to draw the Welchmen to acknowledge the Kings eldest Son Edward of Carnarvan to be their Prince Also by another Statute made 27. Hen. 8. cap. 24. a generall resumption of many liberties and franchises heretofore taken or granted from the Crown as the authority to pardon Treason murther man-slaughter and fellony power to make Justices in Oyre Justices of assize Justices of peace Goal delivery and such like so that from thenceforth the Kings eldest Sonne hath only the name and stile of Prince of Wales but no other Jurisdiction then at the Kings pleasure is permitted him and granted by his Letters Patents as by the tenour thereof following made by King Henry the eight to Edward his sonne and heir apparent may appear Henry By the grace of God King of Ireland was before 33. Hen. 8. a Lordship and now is a Kingdom and the King of England was as absolute a Prince and Soveraign when he was Lord of Ireland as now when he is stiled King of the same Cooks 7. part England and of France Lord of Ireland c. To all Archbishops Bishops Abbots Priors Dukes Earls Barons Justices Viscounts Governours Ministers and to all our Bailiffs and faithfull Subjects greeting out of the excellency of Royall preheminence like as the beams from the Sunne so doth inferiour honour proceed neither doth the integrity of Royall lustre and brightnesse by the naturall disposition of the light-affording light feel any losse or detriment by such borrowed lights yea the Royall Scepter is also much the more extolled and the Royall Throne exalted by how much more noblenesse preeminences and honours are under the power and command thereof And this worthy consideration allureth and induceth us with desire to the increase of the name and honour of our first begotten and best beloved Sonne Edward in whom we behold and see our selves to be honoured and our Royall House also and our people subject to us hoping by the grace of God by conjecture taken of his gratious future proceedings to be the more honourably strengthned that we may with honour prevent and with aboundant grace prosecute him who in reputation
of his Substitution in Latine therefore called Vicecomes as it is to be read at large in Cambden The Earls in recompence of their travell concerning the Officers of the County received a Sallary namely the third peny of the profits of the said County which custome continued a long time after the Conquest and was inserted as a Princely benevolence or gift in their Patents of Creation as by divers ancient Patents thereof may appear which afterwards were turned into pensions for the better maintenance of that honour as appeareth by a Book Case upon the pleading of a Pattent whereby King Henry the sixth Created that worthy Knight Sir John Talbott Earl of Shrewsbury which pension is so annexed to their dignity as that by any means of Alienation it cannot be at any time severed and disjoyned from the same and therefore in respect of such pensions which were the third part of the profits of the County or such other sum given in lieu thereof some men have not without probability thereof imagined quod Comites nominabantur quia in multis fiscu Regii Socii et Comites item participes essent vide Cooks 7 part 34. a. Of the single Earls and not Palatine within the Realm of England there were and have been principally two kindes but every of them subdivided into severall branches for they either take name of a place or hold their title without any place at all Those that take their name of a place are of two kindes for either the same place is a County and this is most usuall as the Earl of Devon-Shire Cornwall Kent c. or else of some other place being no County as a Town Castle Honour or such like of which later sort some are most ancient having their originall even from the Conquerer or shortly after as the Earldome of Richmond in York-Shire Clarence in Suffolk Arundel ni Sussex all which had their originall in the time of the Conquerer by Donation of those Castles and Honors the Earldome of Bath in the time of H. 7. and after in the time of H. 8. erected in the Family where it now remayneth and the Earldome of Bridgewater whereof Giles Dawbery was created in the time of H. 7. Earldomes which have their titles without any place are likewise of two kindes either in respect of office as is the Earl Marshall of England for it is granted in this or the like manner Officium Marescalli Angliae with further words viz. A. B. c. Comitem Marescallum Anglia creamus ordinavimus constituimus c. By which it appeareth that the very Office is an Earldom which title of Earl Marshall of England King Richard 2. gave first to Thomas Newbray Earl of Nottingham whereas before they were simply stiled Marshalls of England Cambden 167. The second sort of Earls by birth and so are all the Sonnes of the Kings of England if they have no other dignity bestowed upon them and therefore it was said that John afterwards King of England in the life of his Father Hen. 2. was called countiscane terrae before he was affied to Alice the daughter of the Earl of Moreton in France though Hollenshed fol. 103. writing of the degrees of people in England saith That the Kings younger Sonnes are but Gentlemen by birth till they have received creation from the King of high estate Earls and all others of the degree of Nobility and honour have Offices of great trust and confidence being for two principall purposes ad consulendum Regi tempore Pacis to Councell the King in time of peace the other ad defendendum Regem Patriam tempore belli to defend the King and Country in time of Warre and therefore Antiquity hath given unto them two Ensignes to resemble both the said duties For the first the head is adorned with a Cap of honour and a Coronet and the body with a Robe in resemblance of Councell Secondly They are girt with a sword in resemblance that they must be faithfull and true to defend the Prince and Country Cooks 7. part 34. a. But to come to the Kings high Councell of Parliament No man ought to presume before he hath received the Kings-Writ of Summons for the rule is ad consilium ne accedas antequam voceris the forme of a writ of Summons to an Earl is as followeth Rex c. Unto his welbeloved Cofin Edward Earl of Oxford greeting Because by the assent and advise of our Councell for certain weighty and urgent businesse concerning us the State and defence of our Kingdom and Church of England we have ordained to be holden a certain Parliament at our Citie of Westminster the 22. day of November next coming and there together with you and with the Prelates the great and noble men of our said Kingdom to have conference and treaty commanding and firmely enjoyning you upon your faith and alleageance whereby you are holden unto us that the dangers and perills imminent of that businesse considered and all excuse set a part you be present the said day in the same place with us and with the Prelates and great and noble men aforesaid to treat and give Councell upon the aforesaid businesse and hereof fail you not as you tender us our honour and the safeguard and defence of our Kingdom and Church aforesaid Witnesse our self at Westminster in the second day of March in the first yeer of our Raign Cromptons Courts tit Parliam 1. which is recited out of the Book of Entries 594. Upon this Writ three things have been observed First A priviledge incident to an Earl or other of degree above him for the Kings doth salute him by the name of his Coâ—in although he peradventure be of no consanguinity to the King Secondly When the King doth summon an Earl or any other Peer of the Realm of the Parliament he doth send his Writ directed to himself particularly and not to the Sheriff of the County as the generall Summons are for Knights and Burgesses for the Parliament Thirdly The Writ is to the Earl of Oxford greeting not naming him Knight though he be a Knight and though that degree be parcell of his name as appeareth 3. Hen. 6. fol. 29. And Priscot chief Justice in the 32. H. 6. 29. That iâ— an Esquire be made Knight he looseth the name of Esquire But if a Knight be made a Nobleman he doth still retain the name of Knight and so ought to be stiled in all Writs And Cooks 4. part fol. 118. a. saith Thâ— if a Baron be created an Earl yet his title of Baroâ— doth continue Bâ—t in Plowdens Book 213. It is agreed That if the Crown of England do descend to a Duke within England his name of Duke is gone for omne â—â— jus tollit minus The increase of Name by the Addition of Honour AFter a Man is created an Earl Viscount or in any other title of honour above them his title become parcell of his name and not an addition
Steward shall declare unto the people the cause why the King hath assembled thither those Lords and him and perswade him to answere without feare and then hee shall cause the Clarke of the Crowne to read his endictement unto him and aske him if hee bee guilty or not whereunto when hee hath answered not guilty the Clarke of the Crowne shall aske him how hee will bee tryed and then hee will say by God and his Peeres and then the Kings Sergeants and Attourney will give evidence against him whereunto when the Prisoner hath made answere the Constable shall bee commanded to retire the Prisoner from the Barre to some other place while the Lords doe secretly conferre in the Court together and then the Lords shall rise out of their places and consult amongst themselves and what they affirme shall bee done upon their Honour without any oath to bee ministred unto them and when they all or the greatest part of them bee agreed they shall returne to their places and sit downe and then the High Steward shall aske of the youngest Lord by himselfe if he that is arraigned bee guilty or not of the offence whereof hee is arraigned and then of the youngest next him and so of the residue one by one untill hee have asked them all and every Lord shall answere by himselfe and then the High Steward shall send for the Prisoner againe who shall bee led to the Barre to whom the High Steward shall reherse the verdict of the Peeres and give judgement accordingly Stamford Pleas del Coronae lib. 3. cap. 1. Poulton 188. The antiquity of this kind of triall by the opinion of the last recited Authours is grounded from the Statute of Magna charta so called not in regard of the quantity but in regard of the waight thereof Cooke Epistle to the 8. part fol. 2. c. 29. beginning thus Nullus liber homo c. nec supereum ibimus nec super eum mittemus nisi per legale judicium parvu ' suorum But I take it to bee more ancient then the time of Hen. 3. as brought into the Realme with the Conquerour being answerable to the Norman and French Lawes and agreeable with the Customes Fewdall where almost all the controversies arising betweene the Soveraigne and his vassall are tried per judicium Parvu ' suorum And if a Peere of the Realme upon his arraignement of treason doe stand mute or will not answere directly judgement shall bee given against him as a Traytour convicted and hee shall not bee pressed to death and thereby save the forfeiture of his lands for treason is out of the Statute of Westminster the first c. 12. 15. E. 4. 33. Dyer 205. and 300. But if hee bee arraigned upon an indictement of fellony hee may bee mute Iâ— appeareth by this Statute of Magna charta that a Peere of the Realme shall bee tried by his Peeres onely in case where hee is indicted at the Kings suite of treason or fellony for the words of the Statute bee Wee will not passe or sit in judgement upon him but by his Peeres But if an Appeale of murder or other fellony bee sued by any Common person against a Peere of the Realme hee shall bee tried by Common persons and not by his Peeres Stam. Pleas del Coron lib. 3. cap. 1. Brooke triall 142. Poulton 188. 6. This Priviledge hath some restraints as well in regard of the person as in the manner of proceedings As touching the person First the Archbishops and Bishops of this Realme though they bee Lords of the Parliament if they bee impeached of such an offence they shall not bee tried by the Peeres of the Realme but by a jury of Knights and other substantiall persons upon their oaths the reason thereof alleadged is for as much as Archbishops and Bishops cannot passe in like cases upon the triall of any other of the Peeres for that they are prchibited by the Common and Ecclesiasticall Lawes to bee Judges of life and death and reason would that the other Peeres should not trie them for this triall should bee mutuall for as much as is performed upon their Honours without any oath taken And so by the way you may see the great regard the Law hath to the word of a Peere of the Realme when hee speaketh upon his Honour even in a case concerning the life of a man and that of a Peere and therefore ought they much more to keepe their words and promises in smaller matters when they engate their Honours for any fast cause or consideration Crompton Courts 13. Secondly as touching the Persons no temporall Lords but they that are Lords of the Parliament shall have this kind of triall and therefore hereout are excluded the eldest Sonne and Heire apparant of a Duke in the life of his Father though he bee called an Earle and it was the case of Henry Howard Earle of Surrey Sonne and Heir apparent of Thomas Duke of Suffolke in 38. H. 8. which is in Brooks abridgement treason likewise the Son and Heir apparant of an Earl though he be called Lord or Baron And all the younger Sonnes of the Kings are Earles by birth though they have no other creation but shall not be partakers of this or other priviledges incident to the Lords of the Parliament Thirdly those that are Barons of the Nobility of Ireland or of Scotland if upon the like offence committed in England they be apprehended in England they shall not have their triall by Peeres no though they were borne within England for they received their dignity from a King of their Nations But if the King of England at this day do create one of his subjects of Scotland to be Viscount Roâ—hester within England or by ordinary summons under his great Seale doe call him to his upper House of Parliament do assign him a place and to have a voice there in his great Councell amongst the Lords and Peeres of the Realme he shall thereby also be a Peere of the Realme and be partaker with them in all priviledges and thus much concerning the restraint of the said priviledges in respect of the person as touching the manner of proceeding it appeareth by the said statute of Magna charta c 29. that a Peere of the Realme shall be tried by his Peeres only in case where he is indicted at the Kings suite of treason of fellony for the words of the statute be Nec super eum ibimus But if an appeale of murder or other fellony be sued by any Common person by a Peere of the Realme he shall be tried by Common persons and not by his Peeres Stam. Pleas del Corone lib. 3. cap. 1. Pâ—ulton 118. and so was Fines Lord Dacres tried in aâ—peale of murder 33. H. 8. Brooke Abridgement trials 142. The Nobility of this Realme enjoy that priviledge that they are not to be impanelled in any Iury or Inquests to mâ—ke tryall or Enquiry upon their corporall oathes betweene party and party for
to mention one case which I read in the bookes of the common Law concerning the discent of a title of honor whereof the Ancestor had estate in fee simple There is a maxime in the Law Possessio fratris de feodo simplici facit ' sororem esse heredem the possession of the brother in fee simple doth make his sister to bee his heire But if a man by any of the three names before mentioned be created into a title of dignity to him and to his heires for ever and hee hath issue a sonne and a daughter by one Venter and hath also a sonne by a second wife afterwards the Father dyeth and his eldest sonne entreth into all his Fathers inheritance and also enjoyeth the title and name of dignity which his Father had but dyeth without issue In this case the dignity shal goe and discend unto the younger sonne though hee be but of the halfe blood unto him that last enjoyed that name and title by discent and shall â—ot discend unto his sister of the whole blood and yet in this case shee should only bee her brothers heire of all his fee simple Lands and the reason and cause hereof is because Possessio fratris because the possession of the brother is the maine and sole cause which may give title to her his sister which fayleth in this cause of dignity For it cannot be said that her eldest brother was in possession of his title of honour no more then of his blood For the diguity was inherent to his blood so that neither by his owne Act neither by any act to be done by another did hee gaine any more actuall possession if so it may be termed then by the law did discend unto him and therfore the younger brother may well by the Law make himselfe heire unto his Father of the honour though hee cannot be heire unto his brother so that this word Possessio which is none other then pedis positio a fixing of the foot extendeth only unto such things of which a man may by his entry or other act and doth require actuall possession Cooks 3. part 42. Ratclâ—ffs case And having thus much dilated concerning the creations and other things incident to the degrees of Nobility I cannot with silence pretermit something to declare concerning that sufficiency and ability of estate which the Law doth require to be in every of them according to their severall dignities The Common Law alwayes will that decorum and conveniency be observed considering the charges and expences appertayning to these degrees and dignities being offices of principall service to the King and the Realme both in time of warre and peace as hath beene said hath ordered that each of them have a convenient portion and value of lands of inheritance for the support of their honours which supplyes are as sinewes conjoyned unto the same For in vertue and in riches as Aristotle counselleth all the old Nobility consisted and which two as Ecclesiastes teacheth maketh a good accomplement for saith he Vtilior est sapientia cum divitiis conjuncta Lamberts Perambulation of Kent â—68 Therefore a Knight ought to have 20. l. land by the yeâ—re a Baron 13. Knights fees and a quarter an Earle 20 knights fees and this doth appeare by the Statute of Magna Charta cap 2. For alwayes the fourth part of such Revenues which is by the Law requisite to the dignity shall be paid to the King for reliefe as for example The reliefe of a Knight is five pound which is the fourth part of 20. l. which is the revenue of a Knight see the Statute hereof 1 E. 2. and the reliefe of a Baron is a 100. markes which is the fourth part of his revenues that is to say 400. markes a yeare which doth include 13. Knights fees and a quarter and the reliefe of an Earle is a 100. l. which is the fourth part of 400. l. which is the revenue of an Earle and it appeares by the Records of the Exchequer that the reliefe of a Duke amounteth unto 200. l. and by consequence his revenue ought to be 800. l. per annum and this is the reason in every of our bookes that every of the Nobility is presumed in our law to have sufficient free-hold Ad sustinendum nomen onus and to what value these ancient rents in time of H. 3. Edw. 1. at this day do amount unto every man knoweth not Cooke 7. part 33. And in cases of decay of Nobility and meanes as Senatores Romani rereamoti senata as Senators of Rome were removed from the Senate so sometimes they are not admitted to the upper house in the Parliaments though they keepe the name and title of dignity still Sir Thomas Smith de reipub Angl. 221. And by a Statute made 31. H. 8. ca. 10. The Lords have their places prescribed after this manner following viz. these foure the Lord Chancellour the Lord Treasurer the Lord President of the Councell and the Lord Privie Seale being persons of the degree of a Baron or above and in the same act appointed to sit in the Parliaments and all assemblies or Councell above all duties not being of the blood royall viz. the Kings brother Vncle Nephew and these sixe the Lord High Chamberlaine of England the Lord Marshall and the Lord Admirall of England the Lord Steward of the Kings House and the Lord Chamberlaine of the Houshold by that act to be placed in all assemblies of Councell after the Lord Privy Seale according to their degrees and estates so that if hee bee a Baron then hee is to sit above all Barones or an Earle above all Earles and so likewise the Kings Secretary being a Baron of the Parliament hath a place above all Barones and if hee bee a man of higher degree hee shall sit and bee placed according thereunto Priviledges incident to the Nobility according to the Lawes of England VVHen a Peere of the Realme and Lord of the Parliament is to be arraigned upon any treason or fellony whereof he is indicted and whereupon hee hath pleaded not guilty the King by his Letters Pattents shall assigne some great and sagâ— Lord of the Parliament to bee High Steward of England for the day of his arraignement who before the same day shall make precept to his Sergeant at armes that is appointed to serve him during the time of his Commission to warne to appeare before him 18. or 20. Lords of the Parliament or 12. at the least upon the same day and then at the day appointed when the High Steward shall bee set under the Clothe of State upon the arraignement of the Prisoner and hath caused the Commission to bee read the same Sergeant shall returne his Precepts and thereupon the Lords shall bee called and when they have appeared and set in their places the Constable of the Tower shall bee called to bring his Prisoner into the Court who then shall bring his Prisoner to the Barre and the High
tryall hereof shall not be by Record as in the former case but by a Jury of 12. men and the reason of the diversity is because in this case the Dignity is accrewed unto her by marriage which the Lawyers tearme matter in fact and not by any record Cookes 6. part 53. a. But a noble Woman by Marriage though she take to her a second Husband a man of meane degree yet shee may keepe two Chaplaines according to the Proviso in the Statute of 21. H. 8. c. 13. for and in respect of the honour which once she had viz. at the time of the retayner and every such Chaplaine may purchase lycense and dispensation Cookes 4. part 117. Cowels Instutions lib. tit 10. 15. but her Chaplaines may not be nonresident afterwards And forasmuch as the retayning of Chaplaines by Ladies of great estates is ordinary and neverthelesse some questions in law have beene concerning the true understanding of the said Statute law I thinke it not impertinent to set downe some subsequent resolutions of the Judges touching such matters Anne Baronesse of Mount Eagle in her Widdowhood did retaine two Chaplaines according to the Statute and one of them had but one Benefice and therefore did obtaine a dispensation with a confirmation from the Queene according to the tenour of the said Statute but before he was presented to his second Benefice the Lady did take to Husband Henry Lord Compton whereby she did forsake her former dignity of Baronesse of Mount-Eagle and afterward the said Chaplain did accept a second Benefice and was therunto admitted and inducted and the Judges have resolved that the Chaplain hath done nothing herein but according to the meaning of the Statute and that the Ladies marriage between his Retainer and acceptance of his second benefice was no Countermand Revocation or determination of that Retainer which the Lady lawfully then did make but that she living he might proceed to the filling up of the qualification Causa origio est materia negoti for though the wife of a Noble-man during the covecture cannot by Law rerain a Chaplain to be quallified according to the statute because by Intendment her Husbands Chaplains are sufficient for that Office yet forasmuch as the Retainer was lawfull then she was widdow that being the principall matter shall enable him to take use and benefice after her marriage for though the husband and wife are but one person in Law yet as the Text is sunt animo duo in carne uno Bracton lib. 5. fol. 363 a. And in this case by the death of the Lord Compton her first Retainer was not determined for without any neer Retainer her said Chaplain may take his second benefice and also for that cause so long as the said Chaplains do attend upon their said Lady in her House they shall not be endammaged for Non-residency Cooks 4. part 117. fol. 90 76. That which remains concerning the further exposition of this statute you may read before in the title of priviledge of Lords So long that the wife of a Duke be called Dutchesse or of an Earl be a Countesse and have the fruition of all the Honours appertaining to that estate with kneeling tasting serving and the rest and so long shall a Barons widow be saluted Lady and a Knights wise also by the courteous Speech of England quandiu Maj. aut viduitas vic durant except she happen to relaps with an Adulterer for as the Laws of this Kingdome do adjudge that a woman shall lose her dower in that case viz. west cap. B. F. N. B. fol. 150. H. Perk. fel. 70. Kitchin 162. b. as Ruto Lands and Tenents so justly so doth the Laws of Gentry and Noblenesse give sentence against such a woman advanced to Titles of Dignity by the husband to be unworthy to enjoy the same when she putting her husband out of mind hath subjected her self to another If a Lady which is married come through the Forrests he shall not take any thing but a Dutchesse or a Countesse shall have advantage of the statute de Charta Forest 11. Art during the time that she is unmarried Cromptons Court fol. 167 b. Wheras it is contained in the great Charter amongst other things in the Form which followeth no Freeman shall be taken or imprisoned or deseised of his Free-hold or his Liberties or Free-customs or shall be outlawed or banished or in any wise destroyed nor go upon him but by the lawfull judgment of his Peers or by the Law of the Land In which statute is no mention made how women Ladies of great estate because of their Husbands Peers of the Land married or sole that is to say Dutchesse Countesse or Barronesse shall be put to answer or before what Iudges they shall be judged upon an Inditement of Treason or Fellonyes by them committed or done because wherof it is an Ambiguity in the Law of England before whom and by whom such Ladies so endicted shall be put to answer and be judged by our said Soveraign Lord the King willing to put out such Ambiguities and Doubts hath declared by Authority aforesaid that such Ladies so endicted or hereafter to be endicted whether they be married or sole therof shall bee brought in answer and put to answer and judged before such Iudges and Peers of the Realm as Peers of the Realm should be if they were endicted of any Treasons or Fellonyes done or hereafter to be done and in like manner and Form and in none otherwise Anno 2. H. 6. Cap. 9. Which statute was but a Confirmation or Declaration of the common Law vide Cooks 6 part 52. b. This is a Rule in the civill law si filia R. nubat alicui dom vel Comiti dicetur semp Regalis As amongst Noble women there is a difference of degrees so according to their distinct excellentnesse the law doth give speciall Priviledges as followeth By the statute of 25. E. 3. cap. 2. It is High Treason to compose or imagine the death of the Queen or to violate the Kings Companion The Kings Espouse is a sole person exempted by the common law and she may purchase by Fee-simple or Make leases or Grants without the King she may plead and be impleaded which no other married woman can do without her husband Cook 4 part 23. B. Theol. lib 1. cap. 4. 24. E. 3. 63. vide Bracton 363. a. All Acts of Parliaments for any cause which any way may concern the Queen and her Capacity are such statutes wherof the Judges ought to take recognisance as of generall statutes for though the matter do only concern the Capacity of the Queen yet it doth also concern all the subjects of the Realm for every subject hath interest in the King and none of his Subjects who are within his Lawes in divided from the King being his head and Soveraigne so that his businesse and things do touch all the Realme and as all the Realme hath interest in the King so and
Honors Pedigree OR THE SEVERAL FOUNTAINES OF GENTRY Being A Treatise of the distinct degrees of the NOBILITIE of this Kingdome with their Rights and Priviledges according to the Lawes and Customes of England By that Juditious Lawyer Sir JOHN DODOREDGE one of his Majesties Judges of the Kings Bench. LONDON Printed for William Sheares at the Signe of the Bible in St. Pauls Church-yard M. D C. LII THE TABLE The severall Dignities Degrees and Titles treated of in this discourse IMprimis of the King 1 Of the Prince 14 Of Dukes and their Patents 36 Of Marquesses 58 Of Earles and their originall 60 Of Viscounts 90 Of Barons in generall 91 The definition or description of a Baron 92 The Etimology and derivation of the word Baron 94 The antiquity of the dignity of Barons and the sundry uses of the name 95 The tenour and proper signification of the word Baron 99 Of Barons by tenure 99 Of Barons by writ 134 Of Barons by Patent 155 Priviledges incident to the Nobility according to the Law of England 162 Certaine cases wherein a Lord of the Parliament hath no pâ—iviledge 200 Of Nobility and Lords in reputation onely 208 Of Noble Women 210 Of Ladies in reputation 234 Of Knights and matters incident to the degree of Knight-hood according to the Law of England 237 Observations concerning a Knight-Batcâ—elour 277 Of Esquires 278 The definition of Gentry or Civill Nobility 285 Of Yeomen 288 A Treatise concerning the Nobility according to the Laws of ENGLAND AS in mans 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 maintenance and government of the Common-wealth of the same hath made a three-fold division of persons That is to say First The King or Soveraign Monarch under which names also a Soveraign Queen is comprized as declared by the Statute thereof made in the first yeer of Queen Mary Anno 5 Parl. Secondly The Nobility which do comprehend the Prince Dukes Marquesses Earls Viscounts and Barons Spirituall and Temporall Thirdly The Commons by which generall words are understood Knights Esquires Gentlemen Yeomen Artifiâ—ers and Labourers But my purpose at this time being onely to speak of the Nobility and especially so much of them as I finde written in the Books of the common Law and Statutes of this Realm This first I have observed That our Law calleth none Noble under the degree of a Baron and not as men of forraign Countries do use to speak with whom every man of Gentle Birth is counted Noble for we dayly see that both Gentlemen and Knights do serve in the Parliament as Members of the Commonalty vide Lamberts Justice of Peace Lib. 4. Cap. 13. Neither do these words the Nobles the high or great men of the Realm imply the Person and Majesty of the King Dier 155. But with the Civilians the King is reckoned among his Nobles Doct. Ridley fol. 93. The Nobility are known by the generall name of Peers of the Realm or the Barony of England for Dukes Marquesses and Earls and all other of the Nobility do sit together in the Kings great Councell in Parliament as Barons and in right onely of their Baronies And therefore by the gâ—nerall names of Barons of this Realm and for the Baronage thereof we do understand the whole Body of the Nobility The Parliament-Robes of Dukes differing nothing from the Barons but they wear the Guards upon their shoulders three or four fold for although Dukes Marquesses Earls and Viscounts in their Creations are attired with Garments of Silk and Velvet yet in the Parliament they use the same as Barons do made with Scarlet with divers differences of white Furre set with Freinges or Edging on their shoulders for there they sit by reason of their Baronies and according to their dignity take their places Thomas Mills fol. 66. And hence it was that those bloody Civill Warres concerning the liberties granted by the great Charter both in the time of King John and H. 3 his sonne persecuted by all the Nobility of this Realm some few excepted are called in our History The Barons Warres Neither have the Spirituall Lords and Peers of the Parliament any other title to that preeminency but because of their ancient Baronies For although originally all the possessions of Bishops Abbots and Pryors were given and holden in Franckalmayn yet shortly after the Norman Conquest most of their Tenures were altered viz. per Baroniam as appeareth by Matthew Parris Anno 1070. 66. and of that Tenure have continued ever since as you may reade by the Consulations of Claringdon in the Raign of Hen. 2. and in Glanvile and Bracton But the Tenure of all Abbots and Pryors were extinguished by the uniting and conveying them to the Crown by the Statute of dissolution of Monasteries made Anno 31 Hen. 8. Cap. 13. And though the Nobility of England in Titles and by certain Ceremonies may be distinguished yet a Baron is in equipage as unto Nobility and priviledges incident to their diguities with Dukes Marquesses Earls Cooks 6. part 53. And it is in ordinary experience That Dukes and others of any high degree of Nobility in cases criminall are tryed by Barons together with many Earls and Viscounts as their Peers and Peers of the Realm Nobilitas generally signifieth and is derived of the word Nosco to know signifying in common phrase of speech both with the Latines and eke with us English-men a generosity of Blood and Degree and therefore one said vir nobilis idem est quod not us per omniâ— c. A Noble-man is he who is known and the Heroicall vertues of his life talkt of in every mans mouâ—h But especially it is applyed and used to expresse the reward of vertue in honourable measure gâ—neris claritatem And this is not to be omitted That the Law doth prohibite any Subject of this Realm to receive Titles of Honor or dignity of the gift or Dâ—nation of a Fâ—rraigne Prince or King or Emperour for it is a thing greatly touching the Majesty of the King and the State of his Kingdom Est jus Majestatis inter insignia summâ— potestatis It is the right of Majesty and amongst the Ensignes of high power vide Cook 7. part 25. 6. And if that mâ—n shall bring an action and in the Writ is stiled by such forraigne title and name of Honour the defendant may plead in abatement of his Writ That he is no Duke Marquesse Earl or Baron whereupon if the plaintiff or demandant take issue this issue shall not be tryed by Jury but by Records of the Parliament wherein he faileth And if an English man be made Earl of the Empire or of any other forraign Nation created into Honour and the King also do make him into any Title of Honour in England he shall now be named in all his judiciall
body who in a moment threatneth to do more then peradventure he after is willing or dareth to do in an age The Menacer layeth open his Name and his grief and standeth in the face of his enemy and discovereth the corrasive of his and doth thereby give a forewarning to his adversary to provide for and defend himself But this secret Canker the Note That if a man do write unto another scandalous words and reports touching a Nobleman and this Letter be signed with his Seal and subscribed with his name yet upon this Letter shewed upon evidence the Nobleman may recover dammages in an action de scanlis magnatum whereof you may see two Presidents in Cromptons Iustice of Peace 85. But if a man do write any matter of defamation to the party himself that is thereby traduced and subscribe and seal the same without other publication done by himself Quaere Libeller concealeth his name hideth himself in a corner and privily stingeth him in fame reputation and credit who then neither knoweth from whom or for what cause he receiveth his blows nor yet hath means therein to defend himself and whether his libelling secret slandering or defaming be against a publike Magistrate or private Person Yet it may tend to the breach of the peace to the raising of quarrels and effusion of bloud and so may be a speciall impediment which all good policy endevoureth to maintain for if it be against a publike Magistrate it is a great scandall and offence to the King his chief Magistrates and the whole Government of the Realm to assign such an Officer to rule and govern others who himself is voyd of government and shall deserve to be impeached with such crimes as he shall be taxed with or shall be imputed unto him by such an infamous Libell and if it be but against a private person yet seeing that a Libell or other note of infamy is intended to defame him to tread his honour and estimation in the dust and root out his reputation and credit from the face of the earth to make him a scorn to his enemies and to be derided and despised of his neighbours it doth greatly kindle the wroth of him and of such as be of his kindred and allies and true friendship and urge them to revenge whereupon do often times ensue grudges quarrels frayes combats and man-slaughter Sometimes the malicious defamer powreth out his venome in writing by a scandalous Book Epigram or Rime either in Meeter or Prose Some other times by songs scoffs jests and taunts and divers times by hanging of pictures of reproach signes of shame or tokens of disgrace neer the place the party thereby traduced doth most converse as the picture of the gallows pillory cucking-stool horns or other such like In which cases the Law hath provided that the party delinquent when he is found out and discovered shall be sharply punished For he may be either indicted for the same offence by the ordinary course of the Common-law or else a Bill may be exhibited against him in the Starre-chamber where he shall be punished according to the quality of his demerits by fine and imprisonment and if it be an exorbitant offence then by pillory losse of his ears whipping c. Or the party grieved may have an action of the case against the offender and recover his dammages And in this case it is not materiall whether the Libel be true or false or the parties scandalized thereby be living or dead or be of good name or evill for though the party be defamed and the Libell true be evill yet our good Laws be provided to punish him and such like evill men by due course of Justice after his offence is presented inquired of tryed and proved to his face before lawfull Magistrats thereunto assigned and he is not to be carped accused and condemned in a corner behinde his back by any other private person who in trudeth himself without warrant to be a Censurer of manners and rather seeketh the discredit of the party then then the reformation of his faults for his secret searching into and sifting into other mens conditions diving into their offences and divulging them to their discredits doth convince the offender to be a man of a lewd disposition to have made shipwrack of his conscience and doth brand him during his life with the name of an infamous Libeller or scandalous backbiter Fardinando Pulton Fol. 16. Cooks 5. part 125. And to conclude this matter concerning the wrong done to the name and dignity of a Nobleman this may be added That it is unlawfull for any person to usurpe the Arms of another Cook to the Reader before his third Book Fol. 8. to A. Yea if a Noblemans Coat Armour or Sword or other Gentlemans bearing Arms at the solemnizing of their Funeralls set up in the Church Chappel or Chancell for the honour of the body defunct be taken down by the covetousnesse of the incumbent there pretending them as offerings due to him or if they be defaced by any other such are to be punished grievously as malefactors and in that case thâ— action shall not be given to the Widdow though she be Executrix or Administratix of her husbands goods for such things as serve for the honour of the party deceased are not to be accompted inter bona Testatoris as the goods of the Testator but the heirs shall have the action as the defender of his Ancestors honour Nam cui injuria ei avervat jus to whom the wrong is done right doth belong but the wrong is offered to the house and bloud and therein especially to the heir qui est totius geniturae splendor of the whole kindred and therefore to him attaineth the right of action in the case Viscounts NExt unto Earls or Counts in order followeth the Vicount this is an ancient name of Office but a new title of honour and by Henry the first brought in who conferred that title upon John Lord Beamont Barons AMongst the Nobles and Honourable Barons have the next place and the last of the Rank It now followeth somewhat to speak in generall of the dignity and degree of a Baron First the definition or description of a Baron Secondly The Etymologie of the name Thirdly The antiquity thereof and the divers uses of the name in former ages Fourthly The divisions and considerations of the severall kindes of Barons And lastly A declaration of the divers and sundry priviledges allowed by the Laws of this Realm unto the Barons and Nobility of the same wherein the vulgar and common person hath no participation The Definition or Description of a Baron IT is a rule in Law that definitions in Jure sunt periculosissimae rarium est enim ut non subverti possunt And therefore I do not often finde any definition or a description of a Baron delivered by writers Neverthelesse in this our Common-wealth of England me thinks that a Baron may be described in a
is no heire male at all that may claime the same for then doth this question take place whether the husband of such heire female shall enioy the dignitie in the right of his wife or no wherein wee are to rest upon a resolution had and given in this speciall question which was in this manner In the time of Hen. 8. when Mr. Winbie tooke upon him the stile of Lord Talboys in the right of his wife having none issue by her the said King assisted both by Civill and Temporall Lawyers gave sentence that no husband of Baronesse in her right should use the stile and dignitie untill he had by her a Child whereby he should become Tenant by the courtesie unto her inheritance The speciall reasons that occasioned this sentence were two First it should be inconvenient for her husband this day to bee a Baron and Peere of the Realme and to morrow by the death of his wife to become none and that without the death of the partie Secondly if he had issue by his wife and were intituled to be Tenant by the curtesie of England of the wives land if hee shall not also beare the stile and dignitie of her Barony then should his sonne after the death of his mother dying in the life time of his father bee Baron and Lord without land for so the Father should have the land as Tenant by the curtesie and the sonne the Lordship without Land And thus much said concerning the nature quality and estate of a Baron by writ and for resolution of the severall points and Articles of the question proposed may suffice Barons by Patent which is the third kind of Barons mentioned in the former division of Barons THere is also a fourth meanes of creation by act of Parliament but the first 2. mentiond and this by Patent are most for the honour of the King for thereby the donation doth proceed from his highnes onely as from the fountaine of all honour and dignity but when the creation is by Parliament every one may bee said donator Cookes 8. part 19. A Baron by creation by reason of Letters Patents is that Noble person whom the Kings Maiesty or any of his progenitors Kings of the Realme have created Barons by such their Letters Patents But this manner of creating Barons by Patent began in the Raign of R. 2. who created first Iohn Beauchamp of Holt Baron of Kidderminster by his Letters Patents 8. October anno 11. But Mils saith in 30. H. 6. this was brought in This kind of dignity of Baron shall bee of such countenance in discent or otherwise as shall beelimited in the Habendi in such Letters Patents contained for it may be but for the life of him to whom it is given or for terme de anter vie of some other mans life as some hold opinion in 9. H. 6. 29. for Cujus est dare eius est dispoâ—ere it may be in speciall a generall tayle and this kind of estate tayle was usuall before the Statute made 13. E. 1. by which estate tayle in Lands and Tenements was created as appeareth by the Patent whereby Hubert de Burgo was made Earle of Kent in the time of H. 3. by these words Habend sibi hered suis de corpore Maâ—gaâ—etaeuxoris suâ— sororis Alexandri Regis Scotiâ— procreatis pro defectu talis exitus remaâ—ere rectis heredâ—bus dicti Huberti and that estates in tayle are at this day titles of honour by the Statute of Westm 2. vide Nevils case Cooks 7. part 33. For the better explanation of this kind of dignity the resolution also of certaine questions shall be very requisite Question If a Nobleman and his Progenitors have for a long time been called to the Parliament and be a Baron either by tenure or writ have had in regard thereof a place certaine in Parliament if afterwards the same Nobleman should be created a Baron of that Barony and by the same name by Letters Patents whether shall hee and his heires retaine his old place in Parliament which hee had according to the former dignity or whether shall he lose â—is old place and take a new place according to the time of his creation onely Answer The case of the Lord Delaware received a resolution Coo 11. part â—â—e Lord de la wares case somewhat answerable to this question Tho. Lord Delaware 3. â— 6. being in some displeasure with William West his Nephew and heire who was Father to the now Lord De la ware procured an Act of Paâ—liament by the which the said Wâ—ll West was during his naturall life only clearly disabled to clayme demand or have any manner of right title or interest by discent â—evenue or otherwise in or to the mannor lands tenements or hereditaments title and dignity of Thomas Lord De la wâ—re his Vncle Afâ—er the said Thomas De la ware dyed and the said VVilliam West was in the time of the late Queene Elizabeth restored and afterwards in the 8. yeare of her Raigne was â—teated Lord De la ware by Patent and had place in Parliament according to his creation by Patent for that by the said Act of Parliament in the time of E. 6. hee was excluded to challenge the former ancient Baâ—ony and after hee dyed whether the new Lord Dela ware should take his place to the ancient Barony by writ or according to his Fathers creation by Patent was the question the opinion of the late Queenes Counsell being Her Majesties Atturney Generall and Solicitor were that the acceptance of the new creation by the said William West could not distinguish the ancient dignity in him at the time of his creation but the dignity was at that time by the Act of Parlâ—ament 3. E. 6. in obeyance suspence or consideration of Law and hee thereby utterly disabled to have the same during his life only so as other acceptance could not extinguish that dignity which hee then had not nor could not conclude his hâ—ire who was not disabled by the said Act of 3. E. 6. to clayme the ancient Barony which opinion of theirs was seene and allowed by the resolution of the chiefe Iustice of England and Lord chiefe Baron and so signified unto the Lord Keeper but this is to bee noted by the reasons made for the said resolution that if the said William West had beene Baron and intituled or in possession of the ancient dignity when hee accepted the said creation the Law perchance might have been otherwise but that remayneth as yet unresolved neverthelesse the rule eodem mod quo quid constuitur dissolvitur but by grant which is made a matter in fact a man cannot transferre his title of honour Cook 7. part And thus much concerning the three degrees of Barons within this Realme may suffice to be said in geneâ—all upon this occasion for the better understanding and direction of that which followeth to be handled And in this place I thinke it not impertinent
generalty answerable to every kinde thereof in this manner A Baron is a dignity of Nobility and Honour next under the Vicount above the Banneret and Valvasor adorned with the title of Lord holding with us the same place as did the Patricii or Senators amongst the Romans The Books of Law do make difference between Dukes Earls Marquesses and Vicounts which are allowed names of dignity and the Baron For they affirm that Baron needs not to be named Lord or Baron by his Writ But the Dukes Marquesses Earls or Vicounts ought to be named by their names of dignity 8. H. 6. 10. 32. H. 6. 3. Cook 8. parts 53. b. a. part Pigot Lambert l. 4. 488. Cambden fol. saith that our common Lawyers do not allow a Baron to be one of the degrees of the Nobility Neverthelesse I do take the Books are to be understood of the 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 adorned and named by the stile of Status gradus dignitas and therefore as requisit to be named as such dignities are a parcell of the Name of the possâ—ssor as well as the Stile and Title of a Duke Maâ—quesse Earl and Vicount c. 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 the Parliament they are thereby made equally Noble Honorable and Peers of the Realm as they are Barons only without any other distinction that I have observed and thus much concerning the three degrees of Barons within this Realm may suffice to be said in generall upon this occasion for the better understanding and direction of the rest to be handled The Etymology and Derivation of the Name Baron MAny Wits have laboured to yeeld the Etymologie and signification of this word wherein following their own fantasies there hath been bred much variation of opinion As for Etymology of words I agree with him that saith That it is Levis fallax plerumque ridicula for saepenumero ubi proprietas verborum attenditur sensus veritatis amittitur It may have some use and serue a turn in Schools but it is to light for judgements in Law and Seats of Justice Cook 7. part l. 27. b. Thomas Aquinas setteth down a more certain rule in vocibus videndum noâ— tam à quo quam ad quid sumitur and words should be taken sensu currenti for use and custome is the best expositor of Laws and words quem penes Arbitrium jus norma loquendi In the Lord Chancellors Speech in the Case of Postnati fol. 61. And forasmuch as the word may aptly import men of strength Bracton as before appeareth not unaptly useth this signification thereof in these words Sunt alii potentes sub Rege quidicuntâ—r Barones boc est Robur belli The Antiquity of the Dignity of Barons and the sundry uses of the Name IT seemeth that the dignity was more ancient then the Name for in the ancient Constitutions Feodall of the Land there is no mention made of the name of Barons howbeit the learned Interpreters do understand that dignity to be comprehended under those which are there called Valuasores Majores and afterward called Capitanii for of the Valuasores there were three kindes Valuasores Majores Gve Capitanii which are thought to be the Barons Valuasores minores and valuasini or valuasores minimi The like dignity within this Realm before the Conquest had those which of the English Saxons were called Tbanes whereof read Lambert in his Preambulation of Kent Fol. 366. And the Book of Dooms-day remaining in the treasury of the Exchequer Neverthelesse the name of the Baron was not much used within this Realm untill the Norman Conquest and after that the word Baron seemeth to be frequented in this Realm in lieu and place of the word Tbane among the English Saxons for as they in generall and large signification did some time use the same to the sence and meaning and to import a Free-man borne of a free parentage or such like so did the Normans use the word Baron and therefore called their free Citizens of their best esteemed Cities and free Burgesses of their best esteemed Towns and Borroughes by the name of Barons And so the Citizens of London Barons of London in divers ancient Monuments of whom also Bracton maketh mention Fol. 272. a. Also there are divers Charters wherein mention is made of such like Barons as the Barons of Worwick in the Record of Doomsday and even to our time the free Burgesses of the five priviledged Ports are called Barons of the Cinque Ports And for that also divers of the nobility of Barons as well spirituall as temporall did in ancient time sit in the Exchequer to determine the difficulties and doubts there arising The Judges of that Court have been from most ancient time called and yet are Barons of the Exchequer Moreover the English Saxons had two kindes of Tbanes the like hath been observed as touching Barons for the Kings and Monarchs of this Realm have had their immediate Barons being the Peers of the Realm and in like manner certain other of the Nobility especially Earls which have had jurisdiction Palatine and Earls Marchers whose Countries have confined upon the coasts of the enemy have had under them for their better defence a kinde of Barons As namely under the County Palatine of Chester were these Barons the Barons of Halton Mounthalt Malebanck Shipbrooks Malpase Massa Rinderton Stockport c. The Earldom of Pembrook in Westwales being first erected by Arnulpâ—us Mountgumory that conquered part of that Country And therefore the Earls thereof being an Earl Marcher had also under him his Barons as appeareth by the Parliament Rolles 18. Ed. 1. It hath been therefore a common opinion received that every Earldom in times past had under it ten Barons and every Barony ten Knights Fees holden of him and that those that had fourteen Knights Fees were usually called and promoted to the dignity of Baron Also Lords and Proprietors of Mannors were in respect of them oftentimes in ancient remembrance cal'd Barons but abasiveth and the Courts and their Mannor called thereof Courts Barons of which Glamvile speaketh Fol. 67. l. 8. c. 11. It resteth now for the more explanation of the use of the name of Baron that we call to remembrance that which hath been before spoken that the custome of our Countrie is that if a Baron be created an Earl the eldest son of the said Earl in the life of his Father taketh upon him the name and title of the Barony although he want the Priviledges belonging to a Baron The tenor and proper signification of the word Baron BArons honourable are of three kinds by Tenure by Writ by Creation As for Barons by prescription which some men have spoken of they are intended