Noble person for it appertaineth not to them to argue or dispute the Authority of the Court but if the Court â—e thereof certified in forme aforesaid they will award a Supersedeas which is in the Booke of Enteries in the Title of Errour Sect. 20. and there are two reasons or causes wherefore no Capias or Exigent lyeth against any Peere the one because of the dignity of their persons the other by Intendment of Law there is none of the Nobility but have sufficient Freehold which the Plâ—intiffe may extend for their payment or satisfaction but a Capias oâ— Exigent lyeth against a Knight for the Law hath not that opinion of his Freehold as the Court said in 26. H. 8. vide 27. H. 8. 22. in Brookes abridgement Exigent 2. 3. Cooko 6. part 52. 54. And if any of the Nobility happen to be so wilfull as not to appeare the Court will compell the Sheriffe to returne great issues against him and so at every default to increase and multiply the issâ—es as lately against the Earle of Lincolne hath been in practice By the Ancient Lawes of this Realme before the comming of William the Conquerour many good Lawes were made for the keeping of the peace amongst others that every man above the Age of 12. yeares should bâ— swâ—rne to the King as you may read more at large iâ— Lamberts perambulation of Kent 21. which we in remembrance thereof doe keep at this day in view of Frank pledge or leete Court but Noblemen of all sorts are neither bound to attend the Leete nor to take that Oath as appeares by Britton cap. 29. treating of this Court called the Sheriffes Turne Courts of which the Leete seemes to be extracted and agreeable thereunto is the Statute of Marlbridge cap. 10. in these words de turnis vice contra provisum est quod necesse non habeant ubi venire Archiepiscopi Episcopi Abbates Priores Committes Barones vide the Lord Chancellors Speech in the case of Post-nati fol. 78. If a Writ of Error be brought in Parliament upon a Judgement given in the Kings Bench the Lords of the higher House alone without the Commons are to examine the errors vide Jbid. fol. 22. Jn 11. H. 4. 2. b. In a case concerning a distresse taken for expences and Fees of the Knights of the Parliament it is agreed for Law that the Baronies and other Lands as are parcell of their ancient Lordships and Baronies but for other Lands they are But there is a question made one which is no Barron but ignoble doe purchase any ancient Barony whether he shall be discharged of such ignoble purchase by reason onely of such his purchase challenge or pretence to have Nobility and place in Parliament as before in this treatise more at large appeareth for as Lands by Villany service doe not make a Villany or Bondman which being free doth purchase the same as Littleton doth teach lib. 2. cap. 12 though by his Tenure he shall be bound to doe such Villanie service so of the other side and that is holden by Barony doth not make the villany peasent or ignoble which purchaseth the same to be noble although the charge of such tenure doe lye upon him in respect of the service of the Realme It is said in our Bookes that a day of grace or by the favour of the Court is not to bee granted to the Plaintiffes in any Suite or Action wherein a Nobleman is defendant 27. H. 8. 22. 27. E. 3. 88. because thereby the Nobleman should be longer delayed then the Ordinaty course of the Court is and such Lord is to have expedition of Iustice in respect that he is to attend the Person of the King and the Service of the Common-wealth but if there be no ignoble person party to the Suite the Judges doe and may at their discretions grant upon a motion and prayer a day or more of tryall otherwise then by the strict course of the Law the Plaintisse may challenge Cambden fol. 169. writing upon the Subâ—ect saith where the Noble man is demandant the Tenant may not be essoyned for the delay and causes aforesaid to which â— would also subscribe but that the Booke of 3. H. 4 5 6. is otherwise adjudged if I doe misunderstand it there the King brought a Oâ—â—re Impedit against a Common person and the defendant was essoyned by the rule of the Court Therefore a fortiori he might be essoyned against a Nobleman Jf any Peere of the Realme being a Lord of the parliamant be plaintiffe or demandant defendant or Tenant in any Action reall or personall against another whereupon an issue is to be tryed by a Jury the Sheriffe must returne one Knight at the least to be of the Inquest otherwise upon a challenge made the whole Pannell shall be quashed which by the order of the Law is appoynted to be done for Honour and reverence due to the persons of that degree for as the words of the Booke are when a Peere of the Realme is party the Law is otherwise then when the Suite is betweene other persons Fitz. Chall 113. 13. E. â— in a Quar. Impedit against a Bishop adjudged Plowd 117. Dyer 208. b. 27. H 8. 22. b. But the Earle of Kent by the name of Reignald Gray Esq brought a Writ of Entry against Sir H. G. Knight 4. Eliz. and the parties did plead to an issue the venire facias was awarded which the Sheriffe did returne ferved and a Pannell returned according in which pannell there is no Knight named the truth of which Cause was that after the returne made the demandant is published and declared by the Queene and the Heraulds to be Earle of Kent in right and by discent although hee had not beene so reputed or named Earle before and also after that time that is to say at the then last parliament the Tenant is made a Baron by a Writ of parliament and both parties have places and voyces in parliament and then the Iury doe appeare in the Court of Common pleas and the Earle of Kâ—nt did challenge the array because no Knight was returned but it was not allowed him by the Court for the admittance of both parties as to the contrary and no default can bee layd to the Sheriffe for he had no notice of the honourable estates of either of the parties the demandant not being then knowne or reputed to bee an Earle by discent or of the Tenants then also being no Baâ—on Dyer 318. How much the Common Law hath alwaies prohibited perpetuities in Lands and Tenements you may see in Corbets Case in the first part of Sir Edward Cookes Booke Fol. 84. and in many other Cases in the rest of his Books also Littleton Fol. 145. saith it is a Principle in the Law that every Land of Fee-simple may be charged with a Rent in Fee-simple by one way or other but of the Kings Majesty upon the Creation of any Peere of the Realme Duke
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
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.
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
Land-lord and that by the space of two yeares whereupon he doth bring a writ of Cessavit which is his remedy given him by the Law thereby to recover the inheritance of the land but the said Lord for the saving of his tenancy being minded to pay all the arrerages before judgment given against him as by the Law hee ought to doe in this case hee must come in proper person and not by Atturney 15. H. 7. 9. b. If a noble man in contempt of any processe which hath beene awarded from out of any the Kings Courts doth make rescous and wilfully doth refuse to obey the said writ and the same his offence doth appeare of record to the Court by the Sheriffs returne there may be and shall be awarded against him a Capias 1 H. 5. Case ult 27 H. 8. 22. Cooks 6. part 54. If any Lord doe depart this Realm as Ambassadour or otherwise by the Kings licence or without licence and doe not returne at the Kings Commandement or upon the Kings writ under his privy Signet the King may seize his lands goods and chattells Dyer 108. b. 17. the Dutchesse of Suffolks case If a Lord arrested upon a Supplicavit for the peace doe wilfully refuse to obey the arrest and make rescous upon his returne shall issue an attachment against the said Lord for his contempt to take his body and this is the way to obtaine peace against any Lord of the Parliament whereas the party could not have an attachment against him if the Subpoena had beene duly served and peaceably accepted although the said Lord had not appeared thereunto Cromptons Justice of Peace 134. If a Lord of the Parliament doth with force and arms detaine a man in prison in his House or elsewhere the remedy is in such cases by himselfe or his friends abroad at liberty to have a writ called de homine replegiando to deliver him but if the Lord to prevent the execution thereof and of malice doe keep or convey away this man so wrongfully imprisoned so privily as that the Sheriffe cannot execute his said writ then will the Court award a Witheram whereby the Sheriffe shall attach and arrest the body of the said Lord and imprison him untill he doe deliver his said prisoner 11 H. 4. 15. All Lords are compellable to take the Oath mentioned in the Statute of 3 Jac. 4. vide the Statute 7 Jac. cap. 6. who have authority to minister the said Oath to them Bracton lib. 5. fol. 337. 6. H. 3. 351. writing of essoines delivereth this learning that if a Baron that holdeth by Baron tenure have his absence excused by essoine he which casteth such essoine or excuse ought to finde surety that the said essoine is true but in case of common persons it shall rest upon the credit and integrity of the Essoinee and so is the use at this day The Statute of magna charta cap. 1â— is quod liber homo non amercietur pro parvo delicto nisi secundum modum illius delicti pro magno delicto secundum magnitudinem delicti nulla praedictarum misericordiarum ponatur nisi per Sacramentum proborum legalium hominum de vicinate and accordingly is the Law thereunto at this day But the subsequent words in the said Statute viz. Comites Barones non amercientur nisi per pares suos non nisi secundum modum delicti are not in use for whether the offence be great or small for which they are to be amerced their amercement must be certaine viz. of a Duke ten pound and of any other of the Nobility Also whereas the amercement should be offered per pares the use is to offer them by the Barons of the Exchequer Cooks 8. Rep. 40. Bracton lib. 3. Tractat. 2. cap. 1. fol. 116. b. When a Peere of the Realme is arraigned in Appeale of Fellony he shall not have that priviledge to bee tried by his Peere as he should in case of Inditement but must undergoe the ordinary triall of twelve men Stamford Pleas of the Crowne lib. 3. cap. 1. Brook triall 142. Ferdinando Poulton 188. b. Read the book of Entries title appeale Sect. 7. also in Case of an Inditement the Defendant though a Peere of the Realme may not challenge any of his Triers either peremptorily or upon causes which in like cases permitted to all other common persons The Judgement to be given against any Lord of the Parliament in case of Felony or Treason shall be no other than according to the usuall judgement given against common persons and although the execution be not pursuant but with the losse only of their heads yet that is by the speciall grace of the King and not ex debito as by the examples of Thomas Lord Dacre 33. H. 8. and of the Lord Sturton 2 Mariae may appeare Brook tit Jury 48. By attainder of Treason or Fellony is corruption of blood so that their Children may not be heires unto them nor unto any of their Ancestors And if hee were a noble man before he is by the attainder made ignoble and not only himselfe but also his Children having no regard unto the Nobility which they had by their birth and this corruption is so strong and high that it cannot be saved by the Kings pardon or otherwise than by authority of Parliament Stamford Pleas del Coronae lib. 3. cap. 34. But here it is to bee observed that Nobility is not a thing substantiall but meere accidentall for that may be present or absent without corruption of the Subject whereof it dependeth for experience sheweth that the passage of honourable titles are restrained by exorbitant crimes when as nature in the meane while cannot bee thrust away with a fork Wherefore although the Lawyers doe terme and call that extinguishment of Nobility which hapneth by such hainous offences committed as corruption of blood neverthelesse they use not this manner of phrase and speech as though Nobility were naturally and essentially in the humour of blood more than any other hereditary faculty but because the right of inheritance which is by degree of communication of blood directed is by that meanes determined and ended and also in regard of the hatred and detestation of the crime it is called corruption of blood note in Dyer 16. Eliz. 332. the Lord Charles Howards case If one be made a Knight in a forraigne Kingdome by a forraigne Knight yet he is to be so stiled in this Realme in all legall proceedings but if a man be created by the Emperour an Earle of the Empire or into any other title of dignity he shall not beare this title here in England Cooks 7. part 16. 20. E. 46. If there be a Father and Sonne and the Father is seised of lands holden in Capite or otherwise by knightly service the King doth create the same Duke and Earle or of any other degree of Nobility and afterwards the Father dieth his Sonne being within the age
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