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
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
only and in all legall proceedings he ought to be stiled â— that his dignity In the first yeer of King Edward 3. fol. 151. a Wâ— of Formedon was brought against Richard son to Alâ— late Earl of Arundel and did demand the Mannor of with the Appurtenants c. The Tenant by his learned Councell did plead that he is Earl of Arundel and was Earl the same day of the Writ purchased and demanded Judgement of the Writ because he was not named in the same according to his dignity and title of Honour to which the Demandant saith That at day and time when he did purchase the Writ the Tenant wat not known nor taken to be an Earl and it is hard Justice if the Writ should abate without any default in the Plantiffe Neverthelesse Because the truth of the matter so that the Earldom did descend unto him before the Plaintiff commenced his Action and purchased his Writ against him therefore by judgement his Writ was abated although the Tenant was not at that time known or holden to be an Earl But if a Baron be Plaintiff or Defendant c. It is not of necessity to name Baron 8. H. 6. 10. Yet see a distinction of Barons concerning this matter heer following Fol. 27. b. And so Reynald Gray was reputed an Esquire after the Eaâ—ldom discended to him till at the last it was published and declared by the Queen and by the Heralds that he was Earl of Kent in right and by discent although he was reputed or named Earl before that time Dyer 318. lib. 10. Addition of Name BUt an Addition may be used or omitted at pleasure except in some speciall cases where processes of Utlary lyeth as hereafter followeth the title of Supremum caput ecclesiae Anglicanae which was by Act of Parliament in the 26. yeer of H. 8. c. 1. an 35. H. 8. cap. 3. annexed to the Emperiall Crown of this Realm is no parcell of the King by stile but only an addition of the Kings stile so that it may be omitted in the Summons of the Parliament as it was done in the first yeer of Queen Mary or used as it was by the late Queen Elizabeth and by the King that now is at his pleasure and so it is adjudged as you may read in Dyer In the first yeer of Queen Mary Fol. 98. And so is the Law declared by authority of Parliament 1. 2. Pâ—il Mary cap. 8. 256. See in Fox his Book of Martyrs Fol. 217. An argument made by Hales contrary But between the Majesticall stile of the King and the title of honour appertaining to a Subject this â—ifference is between grants or purchases made by or to the King and grants or purchases made by or to a Nobleman c. For in that first Case it is necessary that the Name of Kings be expressed otherwise they are voide and of none effect But if a Duke Earl or other of the Nobility do puâ—chase or grant by the Name of Baptism and suâ—name omitting other title of honour it is not void but good enough for it is a rule in the Law That every mans grant shall be construed most strongly against the grantor and most for the benefit of him to whom the grant is made and so ut Res magis valeat quam pereat that the matter may rather be strengthened then void for there is a great diversity in Law between Writs and Grants for if Writs be not formally made they shall be abated which is no greater prejudice then the purchasing another Writ But if a Grant should so Ligersie be made void then the party hath no remedy to have a new for that cause the Law doth not favour advantages by occasions of Misnomer more then the strict rule of the Law doth require Cooks 6. part 64. b. Et sequentia false Latine shall abate a Writ but not a Grant Ibidem And if an Earl be Plantiff or Demandant and hanging the Writ shall not abate but neverthelesse he shall proceed and count by the name of an Earl according to such title of honour as he did bâ—ar at the time of his action commenced Pasch 13. Edw. 3. brief 259. Pasch 19. Edw. 3. Procedendo 2. 32. Hen. 8. 39. 7. Hen. 6. 14. b. Et sequentia 25. Ed. 3. 39. 22. Rich. 2. brief 9. 37. Pasch 24. Edw. 3. 14. But if the Plantiff in a quere impedit be made Knight hanging the Writ the Writ shall abate Cooks 7. part 27. b. There is a Statute made in the first yeer of H. 5. c. 5. where in is contained as following Item It is ordained and established that in every Originall Writ of accounts personall Appeals and Indictments in which the Exigent shall be awarded in the Name of the Defendants In such Writs originall Appeals and Indictments addition shall be made of their estate and degree or mistery and the Towns Hamlets or places and the Counties where they were or be conversant and if by Processe upon the said Originall Writs Appeals or Indictments in the which the additions be omitted any Outlaries be pronounced the said Writs and Indictments shall be abated by the execution of the party wherein the said additions are omitted provided alwayes that though the said Writs of additions personall be not according to the Records and deeds by the surplussage of the additions aforesaid That for this cause they are not abated and that the Clerks of the Chancery under whose names such Writs shall go forth written shall not leave out or make omission of the said Additions as is aforesaid upon point to be punished and to make a fine to the King by the discretion of the Chancellor And this Ordinance shall begin to hold place at the suite of the party from the feast of Saint Michael next ensuing forwards Although the addition of estate degree and mystery to be added unto names be written in the Statute first and before the additions of place and Counties yet it hath been used alwayes after the making of the said Statute to place the additions of estate degree and mistery after the places and County in every Writ Appeals and Indictments against common persons But the use is otherwise in Appeals and Indictments of Treason or Fellony against Dukes Marquesses and Earls for their names of degrees are in such Cases put before the Additions of places and Counties as Charles Earl of Westmerland late of Bramspeth in the County of Durism Thelowell lib. 6. cap. 14. Names of dignity as Dukes Earls Barons Knights Serjant at Law c. Be contained within this word degree for gradus continet statum in se non è contrario degree doth contain state in it self and not of the contrary for the state of a man as Gentleman Esquire Yeoman Widdow single-Woman c. And the art or craft of a man is his mystery by Brook chief Justice in the Common-Pleas in abridgement of the Case of 14. Hen. 6. fol. 15.
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
for the same Reason in the Queene being his wife Plouden 23. 1. a. Coâ—kes 8. Repl. 28. A man seised of divers Lands in Fee holden by Knights service some by Prioritie that is by ancient Feofment holden of others and some other parts holden by the same tenure of the King by posteritie the King granteth his Seigniory to the Queene and afterwards the Tenant dyeth the sonne within age in this case the King shall have the Wardship of the Body and have the Prerogative even as the King himselfe should have had 3. E. 3 4. vide etiam Stamford Prerog Reg. cap. 2. The Queene wife unto the King or widdow shall not be amerced if she be non-suited in any Action or otherwise in which cases any other subject of what degree soever shall be amerced for in this case the Queen shall participate the Kings Prerogative Cookes 6. Report 62. But the Queene shall not in all cases have the same Prerogatives that the King shall have in the same case as for Example Petition is all the remedy the Subject hath when the King seizeth his Lands or taketh away his Goods from him having no title by order of Law so to doe contrary to the opinion of some ancient Bookes as you may see Stamfords Prerog cap. 19. But in such suit shall be made to the Queene but actions against other Leiges of the King according as the case shall require for by the same reason that the Queene may be Plaintiffe and Demandant in actions without the King by the same reason that the Queene may be Plaintiffe and Demandant in actions without the King by the same reason he shall be Defendant or Tenant without pertaking such Prerogatives as doe appertaine to the King 11. H. 4. 64. B. Stamford Prerog cap. 22. in fine Against the King by his Prerogative Nullum tempus occurit Regi but time shall runne against the Queen H. 18. E. 3. 2. a. and aplenarty by sixe mouthes is a good plea in a Quare Imp. brought by Philippa Regina Angliae ibid. fol. 1. et 13. b. Stamford Prerog cap. 18. prope finem In 21. E. 3. 13. b. It is thus to be read note that a protection was sued forth against the Queen in a Writ which she brought and it was allowed though shee be a person exempt Neverthelesse by this short case following may bee observed that the Justices doe not easily suffer any proceedings in Law against the Queene wife or widdow but will hold with their Inmities as much as they may by Law A Writ of dower was brought against Isabel Queene of England mother of the King that then was and the Couâ—t said to the Plaintiffe the Queene is a person of dignitie and excellencie and we are of opinion that she shall not answer to the Writ but it behooveth you to sue to her by Petition and thereupon the Demandant dixit grat and shee prayed the Court to grant a continuance of her Action untill another day so that in the meane time she might sue to speake with the Queen but the Court would not agree to make a Continuanâ—e but said that upon her request they might give day precepart and so it was done for the Queenes Couneell would not agree to a continuance for thereby the Queene should bee accepted as answerable 10. E. 3. 379. The wife of the Kings eldest sonne also hath some Prerogative in regard of the excellencie of her Husband which the wives of other Noblemen have not for by the Statute of 25. E. 3. it is high Treason to violate the wife of the Kings eldest sonne and heire Dutchesses also and Countesses have speciall Honour appertaining to their Estates as kneeling and tasting and such like which things as appertaining more properly to the Heraulds then to this legall discourse I leave unto them By the Statute made 7. Iac. cap. 6. intituled An Act for the Administring the oath of Allegiance and Reformation of Women recusants if any person or persons of or above the age of 18. yeeres and degrees aforesaid must and hereafter shal stand and be presented indicted or convicted for not comming to Church or not receiving the holy Communion or Sacraments of the Lords Supper according to the Lawes and Statutes of this Realme before the Ordinary or other having lawfull power to take such presentment or indictment then 3. of the Privie Counsell of the King his Highnesse his Heires or Successours and no other whereof the Lord Treasurer the Lord Chancellour Lord Privie Seale or principall Secretary to be one upon knowledge shall require such person or persons to take the said Oath but it shall be lawfull to and for every Bishop within his Diocesse to require any Baron or Barons of the age of 18. or above to take the said Oath Also in cases of indictment of Felony or Treason a Baronesse shall have the same tryall by Peeres as doth appeare by the Statute of 20. H. 6. cap. 9. which any other Noble woman of higher degree shall have which priviledge is denyed to all of a lower degree then a Baronesse Ladies in Reputation The wife and widdow and widdow of the sonne and heire of a Duke or Earle in the life of his Father is a Lady by courtesie of speech and honour and taketh place according as in ancient time hath been permitted by the Soveraign Prince and allowance of the Herauld but in legall proceedings they are not to have priviledges nor to be named according to such sirnames of dignity but the King may at his pleasure create such men in the life time of their Ancestors into degrees of Lords of his Parliament and then the Law is otherwise If a Noblewoman of Spaine come into the Realme by safe conduct or otherwise by the King shee be stiled by such her forraign stile of dignity yet in the Kings Courts of Justice she shall not be named by such title though by common speech she be a Lady in reputation An English woman borne doth take to her Husband a Spanish or French Duke though he be made a Denizen yet he shall not beare his title of dignity in legall proceedings A German woman is married to the Earl of Northam or to other the Nobility of England unlesse she be made a Denizen she cannot lawfully claim the priviledges or title of her husband no more then she can to have dower or any jointure from him An English Woman doth take to Husband the Earle of Kildare in Ireland or if a Lord of Scotland though he be a post natus take an English woman to his wife their wives shall not participate their husbands Titles of Dignitie But if the King do create one of his Subjects of Scotland naturalized here by Act of Parliament to be Viscount Rochester within England and after by his Writ of Summons under his Great Seale doe call him to his uper House of his Parliaments and assigne him a place there in his great Councell amongst the Lords and Peeres of
the Realme hee is now also a Peere of this Realme and shall be partaker with them in all Priviledges and by consequence his wife widdow and children after him 32. E. 3. 35. in le case de Gilbert Humfrevill But if an Englishman by the Emperour be made Earle of the Empire his wife shall not beare that title of Honour either according to Law or in Reputation All the Daughters of Dukes Marquesses and Earles are by custome of long time used in the Kings Houses or palace named Ladies and have precedencie and place according to the degrees of their parents and so of this custome the Law doth take notice and give allowance for the honour and decencie but neverthelesse in the the Kings Courts of Justice they beare not these titles of Honour no more then the sonnes of such Noble person may doe brothers to such Ladies Finis Nob. litatis A TREATISE OF KNIGHTS AND Matters incident to the Degree of Knighthood according to the Lawes of England THE particular kinde of services by which lands of Inheritance are distinguished be two viz. Knight service and socage vide Littletons Soccage c. 26. In ncient time Tenure by Knights service was called Regale Servitium Cooke in his Preface to his 3. Book fol. 3 a. because it was done to and for the King and the Realme and formi secum servitium as appeareth in Anno 19. Edw. 2. Title Avowry 224. 26. ass p. 66. 17. H. 4. 19. Cookes 7. part 8. a. Calvins case because they which doe hold by soccage ought to doe and performe their services out of the Realme Littleton 35. Et ideo formi secum dicipoterit quia sita capitur foris Hum. Servitiam persolvuntur ratione tenementarum non personarum Bracton fol. 36. And as Knights service land requireth the service of the tenement in warfare and battell abroad so Soccage tenure commandeth his-attendance at the plough the one by manhood defending the King or his Lords life and person the other by industry maintaining with rents corne and victuals his estate and family See Lambert Customes of Kent fol. 389. For they did thus order their owne lands and tenements one part they kept and detained in their owne hands and in them stately houses and Castles were erected and made for their habitation and defence of their persons and the Realme also Forrests and Parkes were made there for their pleasures Solace and Delight One other part hereof was given to the Nobles and others of their Chivalty reserving tenure by Knights service The third part was bestowed upon men of meaner condition and quallity with reservation of soccage tenure and in this manner the Dukes and other the Nobles with their menialls and followers dissipate to a great part of their lands viz. to their Gentlemen of quality to hold by Knights service and to others of meaner condition by Soccage tenure Gervasius Tilburiensis a learned man who flourished in the dayes of King Hen. 2. in his Dialogue of the observation of the Kings Exchequer hath in effect as followeth Untill the time saith he of King Hen. 1. the King used not to receive money of their lands but victuals for the provision of their house and towards the payment of their Souldiers wages and such like charges Mony was raised out of the Cities and Castles in which Husbandry and Tillage was not used and exercised But at length when the King being in the parts beyond the Seas needed ready money for and towards the Furniture of the warres and his Subjects and Farmers complained that they were grievously troubled by carriage of Victuals into sundry parts of the Realme farre distant from their dwelling houses the King directed Commissions ro certaine discreet persons who having a regard of those Victuals should reduce them into reasonable summes of Money the leavying of which summes they appointed to the Sheriffe taking order withall that he should pay them at the scale or beame that is to say That hee should pay sixe pence over and above every pound weight of money because that they thought that the money in time would waxe so much the worse for the wearing Cambdens Perambulation of Kent fol. 172 173. Vide Littleton libro 2. fol. 26. Note also Gervasius Tilburiensis who lived Anno 11 60. Anno 6. Hen. 2. And Cambden fol. 178. It was anciently ordained that all Knights Fees should come unto the eldest Sonne by succession of Heretage whereby hee succeeding his Ancestours in his whole Inheritance might bee the better enabled to maintaine the warres against the Kings Enemies or his Lords And that the Soccage Fee should be partable betweene the Male Children to enable them to encrease into many Families for the better furtherance in and increase of Husbandry See Cookes Preface to the Reader in his Ninth Booke Fol. 2. 6. But as nothing is more unconstant then the estate we have in Land and livings if at least I may call that an estate which never standeth even so long since These tenures have been so indifferently mixed and confounded in the hands of each sort that there is not now any note of difference to be gathered by them See Lamberts perambulation of Kent fol. 10. Et quia tale servitium formi secum non semper manet sub eadem quantitate sed quandoque praefat ad plus quandoque ad mâ—nus Ideo qualitate Regalis Sencitii quantitate fiat mentio in charta ut tenens vectu tenere possit quid quantum persolvere tentatur Bracton fol. 36. And therefore the certainty of the law in this case is That he that holdeth by a whole and entire Knights fee must serve the King or other Lord fortie dayes in the warres well and sufficiently arrayed and furnished at all points and by twenty dayes if he hold but the moitie of a Knights fee and so proportionably vide Littleton fol. 20. Aâ—no 7. E. 3. 1333. fol. 246. It was demurred in Judgement whether the 40. dayes should be accounted from the first day of the muster of the Kings Hoast or from the day that the King doth first enter into Scotland but it seemeth that the dayes shall be accounted from the first day that the King doth enter into Scotland because the Service is to bee done out of the Realme And they who hold per regale servitium are not to performe that service unlesse the King doe also go himselfe into the warres in proper person and that by the opinion of Sir William Hall Chiese Justice of the Court of â—ommon Pieas Term. Trin. Anno. 7. Ed. 3. fol. 246. but see Anno 3. H. 6. Titulo protec 2. In which case it was observed that seeing the protector who was pro Rex went the same was adjudged a Voyage Royall vide Cook 7 part of his reports and in Fitz-â—erbert Natura brevia 28. fol. 83. Also when before the statute De quia emptores terrarum made Anno 18. Ed. 4. the King or other Lord had given
remember that in our Law books I have read any thing concerning the Order of Knights with addition viz. Knight of the Honourable Order of the Garter Knight of the Bath Knight Barronet Knight Banneret But in the statute of 21. H. 8. cap. 13. where it is thus enacted Every Knight of the Garter may have three Chaplains wherof every one may purchase license or dispensation and receive have and keep two Benefices with tare of souls and they of this Order wherof I have now writ are called Knights of the sput and Butcher Knights And so it is used in the statute of 13. R 2. cap. 1. and in the statute of 3. Ed. 4. cap. 5. Hereof see Cambden 176. and M. Seldens Title of Honours fol. 336. Between Doctors of the Civill law and Knights have â—ver bin question for precedency and Serjeants at law since either of them have obtained credit in the Common-wealth as may appear by the comparison that Tully maketh between Mucius Maurena a Knight of Rome and Publius Sulpicius a Lawyer either of them standing for the Consulship In his Eloquent Oration mâ—de for Murena and many Disputes of Bardell and Bardus arguing the Case to and fro which although it be yet disputable in forreign Countries where the civill law is in credit yet here amongst us in England it is without controversie and so the precedency thereof is undoubtedly in the Knight and Sergeant at law in regard of their Callings But if they both are of equall degree of knighthood or a Serjeant at law not Knight then it goeth otherwise as by Knighthood by Seigniority and by Serieantship by the Kings Writ and degree allowed thereupon Dr. Ridley 95. and so Selden his Titles of Honour fol. 55. touching part of this Discourse not all The opinion of some men hath lately bin that Knights Lieutenants that is to say such as have beene Ambassadours to forraigne Princes or Judges within the Realm may and ought to have during their lives precedencie above men of their owne rankes after these their Offices expired and many of them doe stand strongly hereupon sub judice lis est not determined by judgement but admitting it to be so by way of Argument in that case yet all the Heraulds doe utterly deny that priviledge to the Maior of London and Aldermen or Justice of the peace who have their limited Jurisdiction of Magistracie confined within the compasse of their owne walls and divisions But touching the former they are generall Magistrates throughout the Realme and their imployment concerneth the whole Common-weale and having the publike Justice of Honour of the whole estate committed unto them do more meritoriously draw from thence a greater respect of honour according to the generallitie of their administrations and imployments which an inferiour and more confined Magistrate may have The name of a Knight is the name of Dignity and a degree as is the name of a Duke Earle c. But in all actions he shall be named Knight otherwise the Writ shall abate See Thetwall lib. 3. cap. 3. A Knight also must be named by the name of Baptisme and by his sirname as Sir Ierome Bowes Knight but those of degree honourable who are made by pattent may be named onely by their Christian name and by their title of honour as Iohn Earle of Clare and that for two causes first because of their solemne creations it is notorious et nomen dicitur a noscendo Secondly there is but one of that title of honour within England and therefore it is certaine what person he is but otherwise of Knights as it is certainely knowne in Anno 8. Edw. 4. 24. a. And Priscot Chiefe Justice saith in 32. H. 6. fol. 26. b. that if an Esquire be made a Knight hee loseth his name of Esquire but albeit a Knight may be made a Nobleman or of any high degree he still retaineth the name of Knight and so ought to be stiled in the making of all Writs See Milles fol. 81. Also if a man do recover in an action by the name of Iohn Stibes Esquire and afterwards he is made a Knight he must sue out his Scire facias by the name of Knight Vide Long. anno 5. Ed. 4. fol. 19. And this name shall not dye with him for if hee were bound by an Obligation by the name of Gentleman or Esquire and afterwards is made Knight and dyeth the Plaintiffe in the Action to be brought against his Executors must name him Knight otherwise the Writ shall abate Vide anno 7. H. 4. 7. 6. 26. Ed. 3. fol. 64. a. Thomas Ormond was attainted by Parliament by the name of Thomas Ormond Knight whereas hee was no Knight he shall not forfeit any thing by that attainder because it cannot be intended the same person for this word Knight is parcell of his name 21. E. 4. fol. 17. a. If a Grant be made to H. Knight when he is no knight it is a void Grant But if it be a Feofment in Fee with livery of seisin the livery it maketh good Vide Brock titulo Grants 50. Anno 4. H. 6. If the Plaintiffe or Demandant do in his Writ name the Defendant or Tenant Esquire when he is a Knight the Writ shall not only abate but also the Plaintiffe or Demandant may not have another writ by Iournier account Finches book 59. Vide Cooks b. part de les Reports 1. b. But by the statute Anno 1. Ed. 6. cap. 7. It is amongst other things Enacted that albeit any person or persons being Justices of Assise Justices of Goal delivery or Justices of the Peace within any of the Kings Dominions or being in any other of the Kings Commissions whatsoever shall fortune to be made or created Duke Arch-Bishop Earl Marquesse Viscount Baron Bishop Knight Justice of the one Bench or on the other or Sergeant at Law or Sheriffe yet notwithstanding he and they shall remain Justices and Commissioners and have full power and Authority to execute the same in like manner and Form as he or they might or ought to have done before the same By the statute of Anno 5. H. 5. cap. 5. It is enacted as followeth That every Writ originall of accounts personall appeals and Indâ—ctments shall be made with the addition of their Estates and Degrees c and a little after it is provided That if the said Writs of accounts personall be not according as the record and deed by the surplusage of the additions aforesaid that for this cause they are not Iohn a Stile Gent. is bound by obligation to one A. B. the Obliger is afterwards made Knight the Bond is forfeited A. B. by his Attorney draweth a note or title for an originall Writ according to the defendants degree though it vary from the originall specially as it ought to be made by the statute But the Curfitor mistaking did make the originall only according to such addition as was specified in the Obligation omitting his degree
of dignity and the Entry of Capias alias plures was according to the said originall but in the Exigent and Proclamation and in the Entry of it the Defendant was named according to his degree of Dignity upon a Writ of Errour after judgment doubt was if this might be amended in another Court then where the originall was made and at last it was resolved by all the Court that the Record should be amended by the Cursitor and made according to the Note or Title delivered unto him by the Plaintiffes Attorney Cook 8. part fol. 15. b. It appeareth in our Book of Law that the highest and lowest Dignity are uniuersall For as if a King of a Forreign Nation come into England by leave of the King of this Realm as it ought to be in this case he shall sue and be sued in the name of a King 11. Ed. 3. Test Breccon 473. So shall he sue or be sued by the Name of a Knight whersoever he received that degree of Dignity 20. Ed. 4. 6. H. 6. 14. but otherwise it is as if a Duke Marquesse Earl or other Title of Honour given by any Forreign King yea though the King by Letters Pattents of safe conduct do name him Duke or by any other his forreign Title of Dignity For experience sheweth that Kings joyned in league together by a certain mutuall anâ— as it were a Naturall power of Monarchs according to the Law of Nations have denized one anothers subjects and Ambassadors graced with this title of Honour Therefore though a Knight receive his Dignitie of a Forraigne Prince he is so to be stiled in all Legall proceedings within England Vide Cooke 7. part fol. 16. b. And Kings were wont to send their sonnes to their Neighbour Princes to receive Knighthood at their hands Vide Selden fol. 331. 308. thinking that it was more honourable to take Armes of some other lest affection might seeme to prevent judgement when the father gave them that honour Thus was our King H. 2. sent unto David King of Scots and Malcombe also king there sent unto our H. 2. and our king to the king of Castile to take of them Military or Civill Armes for the tearmes and phrases they used in that age for the making of a knight Vide Camden 174. 8. vide Selden fol. 315. And knights in all forraigne Countries have ever place and precedencie according as they are ancient knights which priviledge is deemed to Noblemen for be they never so ancient in forraigce Countries they shall goe before as Puesneys The degree of knighthood is not onely a Dignitie and honour to the party for so it is termed in Brooke title Additions fol. 44. but honourable for the kingdome and therefore it hath been an ancient Prerogative of the kings of this Realm at their pleasure to compell men of worth to take upon them this degree upon the payment of a Fine as appeareth in Ann. 7. H. 6. 15. Fitzh Abridg. tit Im. 12. and by the Statute a. 1. Ed. 2. de militibus But we see by experience in these daies that none are compelled thereunto and that is the reason wherefore if the Plaintiffe be made knight hanging the Writ it shall abate because hâ— hath changed his name and that by his owne act Vide Cooke 7. part f. 27. b. part 10. b. 1 Ed. 6. cap. 7. contrary And for that cause also by the common Law not only the king but every Lord of a Manor ought to have of every of his tenants a reasonable fine to make his eldest son knight Vide Bracton fol. 36. b. and all lands are subject to these aides except onely ancient Demeasnes and grand and petty serjeantly tenures as the Law hath been anciently delivered Vide Fiszh Nat. bre f. 83. a. and Selden f. 13. where it is also said one that wrote a little after the statute of West the first allowes as a good barre to the avowry for the tenant to plead that the father himself is no knight so that one not knighted cannot claime the aide of his own Tenants Briton de Prises de Avers And it was not at the liberty of the Lord to make more or lesse of his Tenants by the common Law in this case but by the statute at Westminster 1. cap. 35. it is put into certainty viz. forasmuch as before this time reasonable and to make one son knight or to marry his daughter was never put into certainty nor how much should be taken at that time whereby some levyed unreasonable aide and more often then seemed necessary whereby the people were sore grieved And it is therefore provided that from henceforth a whole knights fee be taken but 20. s. and of more more and of lesse lesse after that rate and that none shall levie such aide to make his son knight untill the sonne be 15. yeares of age nor to marry his daughter untill she be of the age of 7. yeares and of that there shall be mention made in the kings Writs formed on the same if any one will demand it and if it happen that the Father after he had leavied any such aid of his Tenants did before he hath marryed his Daughter the Executors of the Father shall be bound to the daughter for so much as the Father received for the Aid And if the Fathers goods be not sufficient his heir shall be charged therwith unto the daughter and this Heir is so incident that although the Lord do confirm unto the Tenant to hold by fealty and certain Rent and release unto him all other services and demands yet he shall have the aid to make his eldest Son Knight Anno 40. E. 3. f. 22. Finches book 24. but the King was not bound by the statute beforementioned because the King was not named in that statute and therfore by the statute 25. E. 3. cap. 11. The Kings aids were brought to a like value Selden fol. 3. 30. The intention of the Law is that an heir within the age of 21. years is not able to do Knight-service till his full age of 21. years Littleton lib. 2. cap. 4. f. 22. But such a presumption of Law doth give place to a judgment and proof to the contrary as Bracton saith Sabilitur presumptioni donec probetur in contrarium And therfore the King who is the Sovereign and Supream Judge of Chivalry hath dubbed him Knight he by this hath judged him able to do him Knight-service and all men concluded not to say to the contrary therfore such an heir being made Knight either in the life of his Father or afterwards during his minority shall be out of ward and custody both for Lands and for his body or marriage by the ancient common Law by reason also that the Honour of Knight-hood is so great that it is not to be holden under by any yet if the King do create any such an Heir within Age a Duke or Marquesse Earl Count Viscount or Baron by this
is no accepter of persons for as unto the Lord he that is greater is as the lesser and he that doth govern as the servant but with men there is a difference of persons viz. The King and under him Dukes Counts Barons Vavasors and Knights Counts so called because they take their name from the County or from the word society who may also be tearmed Consull of Counselling For Kings do associate such men unto them to govern the people of God ordaining them into great honour power and name when they do gird them with swords that is to say ringis gladiorum with the Belts of their swords ringis so called * quasi renes girans circundans for that they compasse the Reins of such that they may keep them from incest and luxury because luxurious and incestuous persons are abominable unto God upon this cause were the stations and encamping of Arms called in the ancient language of Rome casâ—â—â— even of the word Castrare to geld since that they ought to be castrata vel castra In that place ought a good Generall to foresee that Venus delights be as it were gâ—lded and 〈◊〉 off from the Army vide Sir John Ferne his Book intituled The glory of generosity The sword also doth signifie the defence of the Kingdome and Countrey There be other Potents under the King which are called Barons that is to say robor belli the strength of Warre There be others which are called Vavasors viri magnâ— dignitatis â—en of great dignity for Vavasor cannot better be said to be any thing than Vas sortitum ad valetudinem a vessel chosen for valour or as men standing with their Generall ad valuas Regni and this is enough if not too much in generall spoken of the Nobility of England now follow I a more particular discourse of them according to their severall degrees The Prince THe Kings eldest Sonne and Heir apparant is stiled Prince Quasi primum locum capiens post Regem the first next the King To him it was permitted by the Statute of 24. Hen. 8. cap. 13. To wear Silk of the colour of Purple and Cloth of Gold of Tissue in his apparell or upon his horse but by another Statute made in the fourth yeer of King James Chap. 25. all Laws and Statutes concerning apparell are taken away And by the Statute of 34. Hen. 3. cap. 2. Taking shall not be from henceforth made by others then by the Purveyors of the King of the Queen and of the Prince their eldest Sonne and that if any other mans Purveyor make such taking it shall be done of them as those which do without warrant and the deed judged as a thing done against the peace and the Law of the Land and such as do not in manner aforesaid shall be duly punished To eschew maintenance and nourish peace and amity in all parts of the Realm many Statutes have been made in the Raign of Hen. 4. prohibiting the giving of signes or Liveries to any but to their menialls Neverthelesse by the Statute of 2. Hen. 4. cap. 21. It is provided that the Prince may give his honourable Liveries of signes to the Lords or to his meniall Gentlemen and that the said Lords may wear the same as they wear the Kings Livery and that the menialls of the Prince may also wear the same as the Kings menialls But afterwards by occasion of divers other Statutes of latter times made by sundry other Kings for the suppressing of that enormity of maintenance and of the generall words in them that priviledge of the Prince was abridged or rather taken away therefore the Statute of 12. Ed. 4. was made as followeth Item Our Soveraign Lord the King considering that the Prince the first begotten Sonne to the King of England hath been at their liberties to give their Liveries and signes at their pleasure and that divers Statutes against givers and takers of Liveries and signes as well in the time of his noble raign as in the time of his progenitors and predecessors hath been made and that by force of the said Statutes his dear beloved first begotten sonne Edward Prince of Wales Duke of Cornwall and Earl of Chester is as well as any other person restrained to give any such Liveries and signes as our Soveraign Lord the King willing that his first begotten sonne the Prince be at his liberty in receiving any person and giving his signes and Liveries in as large form as any Prince first begotten sonne of any of his Noble Progenitors and predecessors in time pasâ— have been hath ordained and established by authority of the said Parliament that the Prince shall be at his liberty to retain and give his honourable Livery and signe at his pleasure and that the persons so â—â—â—â—ined or to whom such Liveries or signes be or shall be given may be retained and received and wear the same Livery and sign without trouble impediment or impeachment pain contempt or forfeiture or any penalty contained in any of the said Statutes or in any thing in them comprised notwithstanding Nor that the said Statutes in any manner shall extend to any retaining to be made by the said Prince in giving taking or retaining of any Livery or signe of the Prince By the Statute 21. Hen. 8. cap 13. The Prince may retain as many Chaplains as he will though all others of the Nobility other then those of the Kings bloud be restrained to a certain number and they or any of them may purchase licence or dispensation and take receive and keep personages or benefices with cure of souls By order of the common Law a King might have a reasonable ayde of all his Tenents as well of those that did hold of his highnesse by Knights service as of those that did hold their Land in soccage That is to make his eldest Sonne But first note that the ayde is not to be recovered before the Sonne be of the age of 15. yeers or before the Daughter accomplish the age of 7. yeers Fitz Harbert Nat. brevium Knight and for the Marriage of his eldest Daughter and the summe of money was not in certainty but at the Kings pleasure till by the Statute made in the 25. of Ed. 3. cap. 11. by which is enacted as followeth Item It is assented that reasonable aid to make the Kings first Sonne Knight and to marry his eldest Daughter shall be demanded and levied after the forme of the Stature thereof made and not in other manner that is to say of every Knights Fee holden of the King without mean rate 20s and no more and of every 20â— of Land holden of the King without mean in soccagâ— 20s and no more and so rata pro rata of the Lands in soccage And for Lands of the â—enure of Chevalry according to the quantity of the Fee By another Statute made in the said 25. yeer of Ed. 3. cap. 2. amongst other things it is declared that to compasse
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
their places and then may proceed upon any thing there moved lawfully as lawfull persons for it is not convenient that they who are attainted should be in places of law full Judges And then another question was moved What shall be said of the King himself for he also was attainted by his Predecessour Rich. 3. and after communication had amongst themselves all did agree that the King was a person able and discharged of any former attainder ipso facto That he took upon him to raign and to be King by which it manifestly appeareth that by the Laws of England there can be no inter regnum within the same that presently by descent the next heir in blood is coÌ„pleatly and absolutely King without any essentiall Ceremony or act to be done ex post facto And that Coronation is but a royall ornament and outward solemnization of the descent and of this last matter Read Cooks 7 part fol. 10. 6. and that there followeth Of Dukes THe form of the Patent of Duke of York that now is Rex c. To all Archbishops Bishops Dukes Marquesses Earls Viscounts Barons Justices Governours Knights Ministers And to all Bailiffs and faithfull Subjects greeting Whereas We often times call to minde how many and innumerable gifts and what excellent benefits that great worker of all goodnesse of his only benignity and clemencie hath abundantly bestowed upon Us who by his power hath consociated divers and mighty Lyons in firm peace without any strife but also hath amplified and exalted the bounds and limits of our Government by his unspeakable providence above our progenitors with an indissolvible conjunction of the ancient and famous Kingdoms in the right of blood under our Imperiall Diadem in regard whereof we cannot but most willingly acknowledge our fruitfulnesse and issue plentifully adorned with the gift of Nature which he hath vouchsafed upon us because in truth in the succession of children a mortall man is made as it were immortall Neither unto any mortall men at leastwise unto Princes not acknowledging superiours can any thing happen in worldly cases more pleasant and acceptable then that their children should become notable in all vertues gooodnesse manners and increase of dignity so as they which excell others in noblenesse of bloud and indowments of Nature might not be thought of others to be exceeded Hence it is that that great goodnessâ— of God which is shewed unto us in our fertility to passe in silence or to be thought not to satisfie the Law of Nature whereby we are chiefly provoked to be well affected and liberall to those in whom we behold our blood to begin to florish coveting with great and fatherly affection that the perpetuall memory of our blood with honours and increase of dignity and all praise may be affected Our well-beloved Son Charls Duke of Albany Marquesse of Ormond Count of Rosse and Lord of Ardmannoth Our second begotten son in whom the Royall form and beauty worthy honour and other gifts of vertue do now in the best hopes shine in his tender graces We erect create make and ordain and to him the name stile state title dignity authority and honour of the Duke of York do give and him of that Name with the title state stile honour authority and dignity with other honors to the same belonging and annexed by the girding of the sword cap circlet of gold put upon his head and the delivery of a golden Virge we do really invest to have and to hold the same name and stile state and dignity authority and honour of the Duke of York unto the aforesaid Charles our second begotten son and to his heirs males of his body lawfully begotten for ever And that the aforesaid Charles our second begotten son according to the decencie and state of the said name of Duke of York may more honorably carry himself we have given and granted and by this our present Charter we confirm for us and our heirs unto the aforesaid Duke forty pounds to have and yeerly to receive to the foresaid Duke and his heirs for ever out of the Farms issues profits and other commodities whatsoever comming out of the foresaid County of York by the hands of the Sheriffe of the same County for the time being at the Terms of Easter and Michael the Arch-angel by even portions for that expresse mention of other gifts and grants by us unto the same Duke before time made in these presents made doth not appear notwithstanding These be witnesses the most excellent and most beloved Henry Prince our first begotten son Vlrick Duke of Holst 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 welbeloved and faithfull Councellour the Lord Elesmore and Chancellour of England Thomas Earl of Suffolk Chamberlain of our houshold and also our dear cousin Thomas Earl of Arundel and our well-beloved cousin and Councellour Henry Earl of Northumberland Edward Earl of Worcester Master of our horse George Earl of Cumberland and also our well-beloved cousins Henry Earl of Southampton William Earl of Pembroke and also our well-beloved cousins Charles Earl of Devon Master of our Ordinance Henry Earl of Northampton Warden of the Cinque-Ports John Earl of Marr Robert Viscount Eranborne our principall Secretary and our well-beloved and faithfull Councellour Edward Lord Zuch President of out Councell in the Principality and Marches of Wales and also our wel-beloved and trusty Robert Lord Willoughby of Earsby William Lord Mounteagle Gray Lord Chandois William Lord Compton Francis Lord Norris Robert Lord Sidney our well-beloved and faithfull Councellours William Lord Knowles Treasurer of our houshold Edward Lord Wotton Comptroller of our houshold and our well-beloved and faithfull Councellour Alexander Lord and also our wel-beloved and faithfull Councellors George Dunbarr Lord of Barwick Chancellour of our Exchequer Edward Lord Bruse of Kinlose Master of the Rolls of our Chancery and also our faithfull and well-beloved Thomas Lord Eskine of Bielton Lord Balmermoth and others given by our hand at our Pallace of Westminster the sixth day of January in the second yeer of the Raign of K. James K. Edw. 3. in the 11 year of his Raign by his Charter in Parliament and by authority of Parliament did create Edw. his eldest son the Black-Prince D. of Cornwall not onely in title but cum feodo with the Dutchy of Cornwall as by the tenour of the said Letters Patents exemplified may appear Cookâ— 8 part in the pleading Habend ' et tenend ' eidem duci et ipsius et heraed ' suorum Regum Angliae filiâ—s primâ—gâ—niâ—is et dicti loci dâ—â—ibus in Regno Angliae bereditatoriae successoris To have and to hold to the same Duke and his heirs Kings of England the first begotten sons and Dukes of the same place in the kingdom of England and to hereditary succession so that he that is hereditable must be heir
apparant of the King of England and of such a King who is heir unto the said Prince Edward And such a first begotten son and heir apparant to the Crown shall inherit the said Dukedom in the life of the said King his father with manner of limitation of estate was short excellent and curious varying from the ordinary Rules of the Common Law touching the framing of any estate of inheritance in fee-simple or fee-tail And neverthelesse by the authority of Parliament a speciall fee-simple iâ— in that onely case made as by judgment may appear in the Book aforesaid and the case thereof fol. 27. and 21 E. 3. 41. b. And ever since that creation the said Dukedom of Cornwall hath been the peculiar inheritance of the Kings eldest son ad supportandum nomen onus bonoris to support the name and weight of that his honourable estate during the king his fathers life so that he is ever Duxnatus non creatus a Duke born not created and the said Duke the very first day of his nativity is presumed and taken to be of full and perfect age so that he may sue that day for his livery of the said Dukedom and ought of right to obtain the same as well as if he had been full 21 yeers of age And the said Black-Prince was the first Duke in England after the Conquest for though Bracton who made his Book in H. 3. saith Et sunt sub regâ—duces as before appeareth yet that place is to be understood of the ancient kings who were before the conquest for in Mag. Charta which was made in Anno 9 H. 3. we finde not the name of 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 of Duke And the eldest son of every King after this creation was Duke of Cornwall and so allowed As for example Henry of Munmouth eldest son of H. 4. and Henry of Winsoâ— eldest son of H. 5. and Edw. of Westminster the first son of Ed. 4. and Arthur of Winchester first son of H. 7. and Edward of Hampton first son of H. 8. but Richard of Burdeaux who was the first son of 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 apparant to the Crown yet because he was not the first begotten son of a King of England for his father dyed in the life time of king Ed. 3. the said Richard was not within the limitation of the grant and creation by authority of Parliament made in the 11 yeer of king Edward above mentioned And therefore to supply that defect in the 5. yeer of Ed. 3. he was created Duke of Cornwall by a speciall Charter Elizabeth eldest daughter to king Edw. 4. was not Dutches of Cornwal for she was the first begotten daughter of king Edw. 4. but the limitation is to the first begotten son Henry the 8. was not in the life of his father king H. 7. after the death of his eldest Brother Arthur Duke of Cornwall by force of the said creation for albeit he was sole heir apparant to the king yet he was not his eldest begotten son Cooks 8 part 29. b. and 30. a. And the opinion of Stamford a learned Judge hath been that he shall have within his Dukedom of Cornwall the kings Prerogatives because it is not severed from the Crown after the form as it is given for none shall be inheritour thereof but the kings of the Realm For example whereas by the Common Law if a man hold divers Mannors or other lands and toâ—ements of severall Lords all by knights service some part by priority and ancient Feoffment and other lands by posterity and by a latter Feoffment and the Tenant so seized dyeth his son and heir within age In this case the custody of Wardship of the body and his marriage may not be divided among all the Lords but one of them onely shall have right unto it because the body of a man is intire and the Law doth say That the Lord of whom some part of those lands be holden by priority and by the same tenure of Chivalry shall have it except the king be any of the Lords for them though the Tenant did purchase that land last yet after his death the king shall bee preâ—erred before all or any other the Lords of whom the Tenant did hold by priority And so shall the Duke of Cornwall in the same case have the same Prerogative if his Tenant dye holding of him but by posterity of Feoffment for any tenure of his Dutchie of Cornwall although the said 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 before is said Iohn of Gaunt the fourth son of king Edward 3. did take to wife Blanch who was daughter and heir to Henry Duke of Lancaster who had issue Henry afterwards king of England so that the said Dutchy of Lancaster did come unto the said Henry by discent from the part of his mother and being a subject he was to observe the Common Law of the Land in all things concerning his Dutchie For if he would depart in Fee with any part thereof hee must make livery and seizen or if hee had made a Lease for life reserving rent with a reentery for default of payment and the rent happen to be behind the Duke might not enter unlesse hee doe make a demand or if he had aliened any part thereof whilest he was with age hee might defeat the purchaser for that cause and if hee would grant a reversion of any estate for life or yeares in being there must also be Attornment or else the grant doth not take effect But after that hee had deposed King Richard the second and had assumed upon him the Royall estate and so had conjoyned his naturall bodie in the bodie Politique of the King of this Realme and so was become King Then the possessions of the Duchie of Lancaster were in him as King and not as Duke For the name of Duke being not so great as the name of a King was drowned by the name of King and by the State Royall in him who was Duke for the King cannot bee a Duke within his owne Realme but out of his Realme hee may And likewise the name of the Duchie and all the Franchizes Liberties and Jurisdictions of the same when they were in the hands of him who had the Crowne and Jurisdiction Royall were gone by thâ— Common Law and extinct for the greater doth distinguish the lesse and after those times the possessions of the Dutchie of LANCASTER would not passe from King Henry the fourth but by his Letters Patents under the great Seal of England without livery of seifin and without Attornment and if he make a Lease for life being Duke
reserving a rent with reentry for default of payment and after his assumption of the Crown the rent happen to be unpaid he might re-enter without demand for the King is not bound to do such personall Ceremonies as the Subjects are by the Law compelled to do Therfore to have the said Dutchy to be still a Dutchy with the liberties to the same as it was before and to alter the order degree of the lands of the Dutchy from the Crown the said King H. 4. made a Charter by authority of Parliament which is intituled Charta Regis Henrici quarti de seperatione ducatus Lancastria a corona authoritate Parliamenti anno Regni sui primo The Charter of Henry the fourth for the separation of the Dutchy of Laucaster from the Crowne by the authority of Parliament in the first yeâ—r of his raign of the said King as by the tenure thereof may appear And so by authority of Parliament the said Dutchy withall the Franchises and liberties were disjoyned from the Crown and from the Ministers and Officers of the Crown and from the receit of the revenues of the Crown and from the order to passe by conveyance which the said Law did require in the possessions of the Crown But although the possessions of the Dutchy by force of the said Statute stood divided from the Crown and ought to be demeaned and ordered and passe as they ought before Henry the fourth was King yet there is no clause set down in the said Charter which doth make the person of the king who hath the Dutchy in any other degree then it was before but things concerning his person shall in the same estate as they were before seperations Insomuch as if the Law before the Charter by the authority of Parliament adjudged the person of the King alwayes of full age having regard unto his gifts as well of the lands which he doth inherit in his naturall body as in that he doth inherit in the right of his Crown or politique body it shall be so adjudged for the Dutchy land after the said Statute for the Statute doth go and reach unto the estate condition and order of the lands of the Dutchy but doth not extend to the person of the king who hath the lands in points touching his person neither doth it diminish or alter the preheminences which the Law doth give or attribute to the person of the King For if king Henry 4. after the said Act had made a 〈◊〉 or other grant of parcell of the Dutchy by the 〈◊〉 of H. Duke of Lancaster onely it had been void for it should have been made in the name of Henry 4. king of England And thus stood the Dutchy of Lancaster severed from the Crown all the raign of H. 5. and H. 6. being politiquely made for the upholding of the Dutchy of Lancaster their true and ancient inheritance howsoever the right heir uuto the Crown might in future time obtain his right thereunto as it happened in king Edward 4. his time But after king Edward 4. obtained his right unto the Crown of England and was in his remitter he in Parliament attainted H. 6. and appropriated unity and annexed the said Dutchy again unto the Crown of England as by the Statute thereof made in the first yeer of his Raign may appear By which Statute three things were ordained 1. First the County Palatine of Lancaster was again established 2. Secondly he did vest it in the body politique of the kings of this Realm 3. Thirdly he did divide it from the order of the Crown-lands and in this force it did continue untill the time of H. 7. who forthwith being descended from the house of Lancaster did separate it onely in order and government from the Crown and so continueth at this day and all that is before spoken concerning the Duke and the Dukedom of Lancaster appeareth in Plowden 212. and that which there followeth Before I write further concerning the Nobility I should set down the form of the Kings Letters Patents of their Creations and the manner of solemnity used in the admittance and investry of Marquesses Earls Viscounts and Barons according to their severall degrees But I do willingly omit so to do partly because in effect the same may appear by that before recited Patent for the Creation of a Duke altering onely such things which of right ought to be altered and partly because their Patents are not onely extant and of Record but also because all those things are to be read in a printed English Book of this subject judicially made by Tho. Mills being a matter also proper to the Colledge and Corporation of Heralds and not unto the drift of my discourse and I will briefly set down some other things observable concerning each of them Of Marquesses A Marquesse that is if we consider the very nature of the word is a Governour of the Marches and hath the next place of honour after a Duke This title came to us but of late dayes and was not bestowed upon any one before the time of King Rich. 2. who made Robert Vere Marquesse of Dublin and then it became with us to be a title of honour for before time those that governed the Marches were called commonly Lords Marchers and not Marquesses After the Normans had conquered this land it was carefully observed by them as a matter of much moment and a point of speciall policie to place upon she confines and borders of the Britains or Welsh c. not then subdued men of much valour not onely sufficiently able to incouuter the inrodes and invasions of the enemy but also willing to make on-set of them and inlarge the Conquest these men thus placed were of high bloud credit and conntenance among their country-men the Normans and in whose faith and power the Conqueror reposed speciall confidence and trust and therefore in their territories given unto them to hold their tenures were devised to be very speciall and of great importance and their honours inriched with the name and priviledges of Earls of Chester and for the North border of Wales created to be a County Palatine and the Barons of the middle Poâ—t of the South Marches were adorned in a manner with a Palatine Jurisdiction having a Court of Chancery and Writs only among themselvs pleadable to thâ— inteâ—t that their attendance might not thence be driven for the prosecution of controversies and quarrells in the Law and as for the other part of the South Marches they seemed sufficiently fenced with the River of Severn and the Sea Of Earls FIrst It is to be observed that originally within this Kingdome Earldomes of Counties in the ancient English Saxon Government were not onely Dignities of Honour but also Offices of justice for that they did further the administration of justice in the Counties whereof they were Earls or Aldermen They had likewise their Deputies under them the Sheriff an Officer yet in being and retayning the name
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
of one and twenty yeares he shall be in ward but if the King had made him Knight in the life of his Father he should not have beene in ward after the death of his Father neither for the lands descended or for his marriage though he be within age Cooks 6. part 74. in Druries case Nobility and Lords in reputation onely THere are other Lords in reputation and appellation who neverthelesse are not de jure neither can they enjoy the priviledge of those of the Nobility that are Lords of the Parliament The sonne and heire of a Duke during his fathers life is onely by curtesie of speech and honour called an Earle and the eldest sonne of an Earle a Baron but not so in legall proceedings or in the Kings Courts of Iustice Brook Treason 2. But the King may at his pleasure create them in the life of their Ancestors into any degree of Lords of the Parliament Cook 8. part 16. b. A Duke or other of the Nobilitie of a forraigne Nation doth come into this Realme by the Kings safe conduct in which the Kings said Letters of Conduct he is named Duke according to his Creation yet that appellation maketh him not a Duke c. to sue or to be sued by that name within England but is onely so reputed But if the King of Denmark or other Soveraigne King come into England under safe conduct he during his aboad in England ought to bee stiled by the name of King though hee have not merum imperium out of his owne Kingdome yet he shall retaine honoris titulos Cook 7. part 15. b. sequentia All the younger sonnes of the Kings of England are of the Nobility of England and Earles by their birth without any other Creation and onely Lords in reputation And if an English man be created Earle of the Empire or of other title of honour by the Emperour he shall not beare the title in England and therefore is an Earle onely in reputation A Lord of Ireland and Scotland though he be a Postnatus is not a Lord in England in legall Courts of Iustice though he be commonly called and reputed a Lord. NOBLE VVOMEN ALthough Noble women may not sit in Parliament in respect of their sexe yet they are in the law Peeres of the Realm and all or most of the Prerogatives before mentioned which to Noblemen are belonging doe also appertaine to them Cook 8. part 53. But the opinion of some men hath been that a Countesse Baronesse or other woman of great estate cannot maintaine an action upon the statute de scandalis Magnatum because the statute of 2. R. 2. cap. 5. speaketh but of Prelates Dukes Earles Barons or other Nobles and other great men of the Realme and of the Chancellour Treasurer Clarke of the Privie Seale Steward of the Kings house Iustice of the one Bench or of the other great officers of the Realm by which words they conceive the meaning of the makers of that statute was onely to provide in that case for Lords and not for women of honour Crompton Justice of Peace 45. b. Also if any of the Kings servants within his Check-roll doe conspire the death of any Noble man it is not felony within the compasse of the statute 3. H. 7. cap. 13. Honourable women are of three sorts By creation by Descent or by Marriage King Henry the eighth created Anne Bullen Marchionesse of Pembrook and so may the King create any woman into any title of honour as to his Highnesse shall seem good As the King by by his Letters Patents openly read in the Parliament did create Widow the sole daughter of late Baron of Abergavenny Baronesse De le Spencer Cambden 63. 6. Noble women by descent are those to whom either the lands holden by such dignity do descend as heir and they are said to be honourable by tenure or those whose Ancestors to whom they are heires were seised of an estate descendable unto them in their titles of Dukedomes Earldomes or Baronies or those whose Ancestors were summoned to the Kings Parliament for thereby also an inheritance doth accrue to their posterities Noble women also are those who do take to their husbands any Lord or Peere of the Realme although they of themselves were not of any degree of Nobility Fortescue de laudibus legum Angliae fol. 100. Question and doubt hath been made whether if a man be summoned to the Parliament and afterwards die without issue male the dignity and title of honour may descend to the heire female and many arguments have beene made pro contra in that which at this time â— doe purposely omit because I have before discoursed thereof in the title of Barons in this Treatise Concerning the title of honour descendable to the heire female by reason of a tenure in her Ancestor there need no more doubt to be made than of offices of honour the which doe much import the publike wealth and being of estate of inheritance doe descend to the heire female if there be no heire male as the office of high-Constableship of England challenged in the time of H. 8. by the Duke of Buckingham and judged by the advice and resolution of the Judges as by a note of that case extant whereof my Lord Dyer in his Reports hath a memoriall is most evident Dyer 283. b. Kellaway 6. H. 8. 170. b. which descended to the daughters of Humphrey de Bohun Earle of Hereford and Essex as afore is declared the office of a Lord Steward descended to Blanch daughter of Henry Earle of Lancaster in whose right John of Gaunt her husband enjoyed the same The like may be said of the office of Earle Marshall which descended by an heire female unto the house of Norfolk all which offices are as unfit to be exercised by a woman as it is unfit for a woman to be summoned to the Parliament as Baronesse by writ as before is written And when the title of honour doth descend to a woman if question in Law doe arise betweene the noble woman and any other person whether she be of that degree of noblenesse or no the issue shall be tried by the Record thereof and by the Kings writ it shall be certified and not by a Jury of twelve men even as it should be in case her Ancestors had beene party Cooks 6. part 53. 7. part 15. Although the Lawes of this Realme regularly doe make all the daughters where there are no sonnes equally to inherit Lands and Tenements and to be but one heire to their Ancestor yet it is not so in the descent of dignities and titles of honour for inheritances concerning matters of honour being things in their nature entire paticipating of superiority and eminency are not partable amongst many and therefore must of necessity descend unto one and that is to the eldest daughter sister aunt or cosin female inheritable where there is no heires males that may lawfully challenge the same and so in