for they are not bound to beleeve him upon such protestation otherwise then they thinke in their conscience to be conformable unto truth If a man doth receive a menace at the hand of a Nobleman Privileg whereupon he conceiveth feare of his safegard 35 H 6. Sub-paena 20 V. 14. E. 3. and prayes a Supplicavit in the Chan. directed unto the Justice of peace or Sheriffe to take bond c. such Writ which otherwise is ordinary but the Lord Chancellour shall award a Sub-paena in stead thereof and when he appeareth in stead of surety he shall onely promise upon his Honour to keepe the peace which the Law hath allowed in this point a Caution sufficient A nobleman is not to bee arrested by any Capias Privileg 5. 21. E. 3.39 43. E. 3.33 8 R 2 7. H. 4 2. 11. H. 4.15 1. H. 5.14 14. H. 6.2 22 H. 6.226 26. H 8.7 14. Eliz 115. Restaint and therefore cannot be outlawed in any civill Action but onely in Criminall And by the same reason lyeth no Attachment against him as it was ruled in Parliament 14. Eliz. in the Lord Cromwells Case But if he make any notable contempt against the proceedings of the Law then ceaseth this priviledge for Frustra legis auxilium invocat qui in legem peccat As if in a Writ de homine replegiando hee will not permit the Sheriffe to execute the Writ or Essoigne the party or upon a Rescousse a Capias hath this priviledge notwithstanding So in cases Criminall 27. H. 8.14 15. H. 7.1 a Capias and an Exigent may be awarded The like priviledges doth the Court of equitie allow in cases of conscience Chanc. nomine Sub-paena for the Lord Chancellour doth not award any Sub-paena but sendeth his Letters missive in lieu of other ordinary Processe In the prosecution of any Action personall Privil 6. 14 E. 3.22 15 E. 3.21 22 E. 3.9 27. E. 38. 41. E 3.31 27 H. 8.22 the Plaintife may pray Jour de grace but against a Peere of the Realme it shall not be allowed although it be allowable against other persons If any Lord Spirituall or Temporall be partie to any Action Privileg 7. 13. E 3. â—â— Chal. 115. â— 22. H 8.22 Dyer 107.3 4. Elize 24 9. 10. Eliz. 26. there ought to be one Knight at the least to be impannelled in his Jury with other the most sufficientest Esquires in the Countrey otherwise he may challenge the Array but if there bee no Knight in the County the Pannell shal be made of the most sufficient Vavasours and Esquires there inhabiting But if one bring an Action against another and the Shâ—riffe impannell a Jury where there is not any Knight 14. 15. Eliz. 318. and before the Triall the Plaintife or Defendant is Created a Baron or c. and hee doe challenge the said Jury such challenge shall not bee allowed for at the time of the enquest made he was not so reputed as in the Case of Reginald late Earle of Kent may appeare If the King grant an Annuitie or Rent to a then created Baron Privileg 8. for the support of his Degree 6. H. 6.2 which they call creation money this is so annexed to the Dignitie that by no manner of alienation it can be severed If the King upon such Creation give land c. untill he shall bee advanced to some other living and upon Eviction to have the valew if he be impleaded of this land by Scire facias 21. E. 3.47 c. hee shall have aid of the King If a Baron be partie to a suite Privileg 9. Pract. l. 5. fol 337. 351. and would be essoigned hee that casts the essoigne out to put in sureties to prove the cause which is not usuall in case of common persons In all cases where he is to be amerced his amerciament is not lesse then a hundred shilâ—ings by the Statute oâ— Magna Charta 14. and it was to be affirmed by hiâ— Peeres Privil 10.16 E. 3 â—m 14 38 E. 3 31 1. H. 6.7.9 H. 6 2 32. H. 6 30 19. E. 3.9.21 E 4 77 Fleta lib. 2. But for that it were troublesome to assemble Barons for so small matter such amerciaments in time past have beene obtained by the Barons of the Exchequer who were sometimes Barons of the Realme Whereas by the Statute 32. H. 8. no subject might keepe in his family above foure Strangers borne Privil 11. Br. fol. 116 Coâ—ke 8 39. Stat. 32 H. 8.16 Privil 12 yet by a Proviso every Baron may keepe sixe If a Lord of the Parliament having place and voyce there Stat 1. E. 6. cap. 13. be convicted of Felony wherein Clergie is allowed upon request alleadging that hee is a Baron c. and clayming the benefit of his Clergie although hee cannot reade without burning in the hand losse of Inheritance or corruption of blood hee shall for the first time bee deemed a Clerke convict and may have purgation Also Privile 13. whereas it is ordained that the Justice of the Peace named of the Quorum shall be resident in his Shire Stat. 2. H 5 cap. 4. by a Proviso the Peeres of the Realme are exampted By the antient Lawes before William the Conquerors time Lemb perambul de Kent 21. Britt cap. 29. Marlb cap 10. every man above 12. yeeres should be sworne to the King which we observe now in the veiw of Francke-pledge Court-leete But noble men c. are neither bound to attend the Leete nor take the oath If an Error be brought in Parliament upon a Iudgement in B. R. the upper house alone without the Commons Postaat 20. are to examine the errors In 11. H. 6.2 in a case concerning distresse taken for expences and fees of the Knights of the Parliament 11. H 6.2 It was agreed that the Barons are not contributorie for Lands parcell of the antient Barony but for other lands but there is a question made whether the purchaser of such an antient Barony should enjoy the said priviledge which question was not worthy the questioning for as lands holden by Villaines service doth not make the free purchaser a Villaine though he be bound to doe such Villaine service so doth not such Purchase ennoble him that purchaseth By the Stat. of 5. Eliz. cap 1. all Burgesses of Parliament shall take the oath of supremacie Staâ— 5 Eliz cap. 1. so shall Citizens and Barons of Cinqueports But there is a Proviso in that Stat. that forasmuch as the Qu. is otherwise sufficiently assured of the faith c. of the temporall lawes Therfore this act shall not compellany of or above the degree of a Baron to take this oath nor to incurre any penalty limited for the refusall By the Stat. of 5. R. 2. cap. 12. the King defendeth the passage of all manner of People in every Port Stat. 5. R. 2. cap. 12. c. upon the Sea Coast
6.36 37. H. 6. forasmuch as our bookes doe acknowledge them to be determined by course of the Civill law It is true Resol that the manner of performance of those severall kinds of Combates is very different and although the combate for Honour or upon the Appeale for treason be performed within England according to the custome of forraigne Nations in some respects although not altogether so that almost every particular Countrey hath a particular manner by meanes whereof some men seeing the difference betwixt those and the ordinary course of observance of Combates for land in the Writ of right or for life in the Appeale of felony have therefore imagined that the proceeding in Combate before the Lord Constable or Lord Marshall in the Appeals of treason or in causes of Honour betwixt such persons Paris de Putio Iohannes de delignatio Iac. de Castilio And. Assiatus Iul. Herret Anthon. Mosseus Cod. lib. 21. gladiatus lege unica Dig lib 9. ad legem aqualiam leg 7. Justus Lipsius de gladiatoribus as by the law may wage the same should be according to the course of the Civill law yet neverthelesse it must been certaine that the Civill law of the Romanes is so farre off from giving any allowance thereto as that it seemeth to forbid it For that law of the Christian Emperour Constantine is most notably alledged to this purpose by most of the learned Doctors of the Civill law that have written De duello the words of which law are these Cruenta spectacula in otio civili domest quiete non placent And that which for disputation sake is alledged to the contrary Si quis in collustratione vel pancratio vel pugiles dum inter se exercenturs alius alium occideret Si quidem in publico certamine alius alium occiderit cessat equalia quia gloriae causa virtutis non injuriae gratia vitetur damnum datum is understood rather of Justs and such like playes de gladiatoribus as were usuall among the Romanes all which were abrogated by this law of Constantine I. de Lignano de Duel a 5. Inlius Ferret de duel n. 20.5 Andr. Ascicus de duâ—ll cap. 4. de legibus Congobard â—it de Monarchijs n. â— Iul. Ferreâ— de duelâ—o 17 â—et Gregor lib. 48. cap 161. n 8. Neverthelesse among these warlike Nations that invaded the Romane Empire this kind of single Combate hath beene againe exercised in divers Kingdomes according to the custome of every severall Countrey Among the Lumbards it was permitted in 19 cases Their weapons being nothing else but the Shield and the Baston And yet of the use or rather abuse therreof the King Katharius seemeth to complaine purposing to have abrogated the some Quia incerti sumus de judicio dei multos audivimus per pugnam sine justa causa suam causaem perders sed propter consuetua gentis nostre Longobardor legem impiam vetare non possumus In the severall Kingdomes of Cicilie in Spaine it hath beene allowed in some Cases Likewise in France by the constitution of Philip le Beau. Anno 1306. Likewise the Emperour Fredericke did permit it in certaine cases expressed in the Treatise De consuetud feodorum in the title De Pace tenenda ejus violatoribus si quis hominem si quis alium si quis Miles c. In some places of Italy the battell hath beene allowed upon lesse occasion De pugn cern cap. 4. in fine of the which Alciatus maketh mention with some detestation Hereof it is evident that the order manner and causes of single Combate are different in divers Countries and every Countrey that people following their owne Customes and usages being their peculiar Law and in this our Realme it was a tryall much more frequented in antient times neere the Conquest then succeeding ages for it is evident by some antient Records and Plea rolls yet extant of King Steven Wager of battell in personall causes H. 2. R. 1. and King Iohn that it was permitted to be waged in personall occasions in cases wherein men now commonly wage their law 37. H. 6. fol 36.37 H. 6. fol. 20. Glan lib. 8. cap 8. Que battalle partee gage en ascun case en vn ' bre de fac Iudgement and therefore in 37. H. 6. and 37. H. 6. fol. 20. Needehams opinions are much more agreeable to the truth where both doe affirme that such waging of battell before the Lord high Constable and Earle Marshall is by the Lawes of this Realme although it bee determined before them and so great a Sympathy is betweene that Court and others of common Justice as that the Judges shall take notice of the proceedings before the Lord Constable and Earle Marshall upon occasion offered rising in debate before them Object 6 The sixth Objection is this The common Law in the trials of matters in sentence doth proceed by a Jury of 12. but the law of Chivalry in the triall of matters in fact concerning Honour and ARmes proceedeth upon examination of witnesses which is according to the course of the civill Law therefore matters of Honour are to bee determined by the civill not common Law I the tryall of matters in fact Resolu the common law doth not alwayes proceed by a Jury for although they most properly lye in the Conusance of the Jury 8. Ed â—â— triall 94. 9 Ed 2. Iudg meÌ„t 231. yet in other matters the Law hath ordained some other manner of tryall as they gage others by Witnesses as if a Wife bring a Writ of Dower supposing her Husband to bee dead and the tenant saith that he is alive whereupon they arer at issue this shall be tried by Witnesses only and not by Jury 33. H. 6.9 35. H. 6.47 So likewise if land be recovered by default and after brings a Writ of discript for that hee was not lawfully summoned in the former action upon which they are at issue 13. Ed. 1.36.37 13. H 7. vill 43.47 H. 3 15. Ed 2. Coron 385. Vill. 3â— 19 H. 6.32 this shall be tried by examination and depositions of the summoners c. and not by the Jury In a Write de Nativo habendo whereby the Plaintife claimeth the Defendant to bee his villaine the Defendant saith hee is a freeman and thereupon they are at issue this shall not be tried by a Jury but by Witnesses namely such males as be of the blood and kindred of the Defendant and not otherwise 48. Ed. 3. n. 34. H 2. 46. E. 3. Some matters of tryall in fact are tried by view and inspection of the Court 8. Account 121. not by a Jury as the Nonage of the Plaintife or defendant alledging himselfe to be within the age of twenty one yeares And the like tryall is of a Maykem 21. H. 7 33. 39. E. 3.32 7. H 4.24 38 E. 3 27. 18 E. 4 36. 2 H 4.17 22. H 6.27 wherras in
then sought to be infringed by the Pope and his Clergie Called the Assis of ClarindoÌ„ in old Writers it is thus expressed in the 11. Article Archiepiscopi Episcopi universa persona regni qui de rege ten ' in Cap. habeat possession suas de Rege sicut Baroniam inde respondeant Justiciarijs c. Regis faciant omnes consuet regias sicut caeteri Barones debeant interesse judicijs curiae Regis cum Baronibus quousque perveniatur ad diminutionem membrorum vel mortem 10. E. 4.6 De Rot. ParliameÌ„t 11. R. 2. an no 9 in turr London Here we see the presence of the Bishops in the Parliament in respect of their Baronies Quousque perveniatur ad diminutionem c. For ever unto our times when question is had of any attainder of any Peere in Parliament they depart the higher house and make their procurators for by the Decrees of the Church they may not be judges of life and death Of the Baronies of Bishops Lib 9. fol. 66. and of their homage for the same Thus writeth Glanvill who tempore R. 1. was chiefe Justice Episcopi vero consecrati homagium facere non solent Domino regi etiam de Baronijs suis sed fidelitat cum jurament interposit ipsi praestare solent Elect. vero in episcopos ante consecraetioneÌ„ suam homag sua facere solent Of these also Bracton saith St autem terra data fuit Ecclesiat Cathedral vel conventurae non jacebit assisa utrum quamvis in habitam c. Eleemosinam Of the which hee reciteth a Judgement P. 15. H. 3. which was given in a Writ of Errour upon a Judgement in Eire betweene the Prior of Lewes Gilb. de Aquila Bract lib 4. cap. 2.287 and he yeeldeth the reason thereof Againe Bract. lib. 5. cap. 23. fol. 4.27 he in another place searching out the reason why the certificate Excommunicat spiritualium any spirituall Judge other then the Archbishops and Bishops of this Realme is not by any Law to be admitted hee yeeldeth this reason so that none of those other spirituall Judges are compellable to admit the action as are the the Archbishops and Bishops Quia rex in episcopis coercionem habet propter Baroniam Meaning thereby that upon their contempt the King doth seaze their temporaltie Likewise about 46. E. 3. the Bishop of Chichester Leased for life a Mannor parcell of his Bâ—rony with licence of the King 46. E. 3. forf 8. this alienation was a forfeiture because parcell of his Barony Many more authorities might be cited out of Records and bookes of Law 13. E. 3. Chal. 115. enquest 43.29 E. 3.42 in regard whereof they have in antient time been named Peeres of the Realme and have enjoyed other the priviledges that Peeres doe the triall by Peeres onely in matters of Treason or misprision c. excepted wherof Stamford giveth the reason Non ratione Nobilitatis sed ratione officij 39. E. 3.30 31. E. 3.94 21. E. 4 77 27. H. 8. 27. H. 8. â—nqust 99. 2. Mar. 46. 35. H. 8. Triall 142. Stan. 1536. 1. H. 4.13 H 8 11. Another reason why Bishops are not tryed by Peeres as other Peeres because they cannot passe upon the life of any man being thereunto forbidden by c. and therefore the Peeres cannot trie them for that this kind of triall should be mutuall if the offence give occasion insomuch that their censure is upon their honour without oath c. The like of those Abbotts 21. E. 3.88 36. H. 6. 7. H. 6.108 7. H. 4.2 26. H. 8.7 21. E. 3. n. 50. Priors c. which held some part of their land per Bar. who were also called Peeres of the Realme therefore no Capias against them and therfore some of them that held not per Bar. being summoned to the Parliament upon their petition were discharged whereof there are some presidents extant The Abbot of Saint Iames neere Northâ—mpton in 12. E. 3. was summoned to the Parliament which was the same yeere holden at Yorke who because neither he nor his predecessors were summoned and because he held onely by Frankalm hee by his Procurator exhibited his petition to the Lord Chancellour a monument wherof I have seen in this maÌ„ner Abbas Sancti Iacobi North Irrotul de novo in Cancell dom Regis inter citand ad Parliamentum non tent per Baroniam nec de rege in Capite sed tantum in pura Out of the Register booke of St. Iames of Northampton c. Eleemosina nec ipe nec predecessor sui unquam in Cancellaria irrotulat fuerunt nec ad Parliamentum cita huc vsque unde idem Abbas petit remedium Ad cujus billam execut Dominus Cancellar cum suo Consilio de Cancell ordinavit quod nomen praedict Abbatis a registro Cancel deleretur ita pluribus circumspect idem Abbas est absolutus facta est haec excusatio per visum Domini Iohannis de Oth. Episcopi Elien Cancil domini regis domini Willielmi Dirmins tunc cust rotulorum al' A like Petition was made by the Abbot of Leicester unto K.E. 3. and thereupon obtained a Writ of discharge in this forme Ex. rot Patent 26. E. 3. pars 1. M. 22. in turri London Edwardus Dei gratia c. Salut supplicavit nobis dilect nobis in Christo Abbas de Leycest in Abbatia sua predict per Robert Fits Roberti de Mellent dudum Com. Leyc fundata fuisset in puraÌ„ eleemosinam advocat sibi preornat ad manus Domini Hen. quondam regiae Angl. proavi nostri per forisfacturam Simon de Monte forte tunc Com. Leyc proin ejusdem darent idemque Abbas alijque terras sive tenta de nobis per Baron sive aliâ— modo non tenuit per quod ad Parliamentum venireâ— teneatur nec aliquis predecessorum suorum ante 49 annum Domini proavi nostri part forisfacturam dicti Simonis quo anno omnes Abbat Priores regni nostri ad parliamentum proavi nostri tunc tenturum voluntarie summoniti fuerunt summonit extiterit velimus ipsum Abbat de hujusmodi adventu ad Parliamentum facere exonerari quia visis chartis confirm de terris tentis eidem Abbati dat concessis in Rot. Cancell nostri irrotulat compertum est quod dicta Abbat praedict Roberti Fitzs Robert Com. Leyc fundat erat in pura elemosina non invenimus quod praedict Abbaes aliquas terras de nobis tenuit per Baron c. nec quod predecessor sui adalia parliamenta progenitorum nostrorum ante praedict 49. Annum dicti proavi nostri aut post modum continue sed vicibus interpellatis summonit fuerint nolentes ipsum Abbat indebite sic vexari Concessimus pro nobis c. quod idem Abbas c. de veniendo ad Parliamentum c. quieti sint Ita semper quod dictus Abbas
Honour given in respect of wisdome and vertue of him on whom it was first bestowed is not onely a due reverence of him c. while he liveth but also a memorable reward thereof to his posteritie see Tully Cicero pro Sextio Therefore this kind of honour is patrimoniall If infamy of the ancestor be a blot to posteritie as for it the law doth corrupt the blood for the offence of the Ancestor Reason would that the honour due to the Ancestor should be likewise Honour to the posteritie for Contraries doe carrie their contrary in reason For determination whereof it is to be noted that diversitie of reason hath bred diversitie of opinions Some thinke it is not descendable vnlesse the Heire be likewise called by Writ and that then its an inheritance but this is repugnant to the nature of a descent which commonly carieth the patrimony descendable by act in law vpon the death of the ancestors to the heire or not at all Wherefore divers presidents prove that this doth descend and there needs not any word of heire in the Writ of Summons onely there is a speech of a speciall Writ sometimes directed to Sir Henry Bromflet Teste Rege apud West 24 Iun. 27. H 6. when he was called Lo. Vescy by H. 8. in 27. yeere of his raigne wherein there are these words inserted Volumus tamen vos haeredes vestros masculos de corpore vestro legitime exeuntes Barones de Vescye Wherfore it is ever true that the heire of such a Baron when he is called to the Parliament that his descent of honour is thereby established and approved by the gratious Iudgment of our Soveraigne so it is also true that if it shall stand with her highnesse pleasure that such heire shall not be summoned at all for none come to so high a Councell except he be called then that Nobilitie is much impaired and in manner extinguished in the censure of all men for that it had no other originall but by writ of Summons for the which in the Judgement of the supreme Soveraigne he is secluded And thus much as concerning the first Article or point touching the descent in generall of this kind of Baronie As for the second principall Point The second point whether the Barony by Writ may descend to the heire Male it shall not be amisse likewise to view the reasons of each part that by the conflict of Argument the truth may the better be discerned Those which doe maintaine the affirmative part doe reason after this manner Ratio 1. On the affirmative part In reason the sexe of the Heire female ought no more to barre her of the dignitie then the nonage of the Heire male ought to barre him although during his nonage hee be not able to doe the service But as the service of the one is forbearing for the time So the sexe of the other may at all times be supplyed by the maturitie and sufficiencie of her husband Ratio 2. Offices of Honour which doe much import the publike weale being possessed by inheritance to descend to the heire female if there bee no Neeces heire male as the office of high Constable of England which descended unto the Daughter of Humfrey de Bohun Earle of Hereford and Essex as afore declared the office of Lord Steward descended unto Blanch Daughter of Henry Earle of Lancaster in whose right Iohn 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 Norfolke All which Offices are as unfit to be exercised by a woman as it is unfit for a woman to bee summoned to the Parliament as a Baron by Writ And yet notwithstanding the Law doth allow the Husband of such a woman to exercise the Office of the one And therefore by the same congruitie of reason such Husband is likewise by law inabled to performe the other Ratio 3. Many Noble houses in England doe support and lawfully beare the Dignitie of Baronage unto them descended by women Renatus Cap nus de dom cap. H. 7. 8. of the which many are by Writ Moreover in France the dignitie to be a Peere of the Realme as Opimus by many examples proveth descendeth to the heire female for want of heire male The dignitie of Nobilitie descendeth likewise in Spaine vnto the female for want of Heire male which custome not being onely currant in our neighbour countries but with vs in an evident proofe in the case in question Ratio 1. on the Negat The adverse part object that the writ of summons c. by which the Baron hath his originall is to call him to be one of the members of that right high assemby of Parliament there to determine life and member plea and right of land c. but these things are convenient onely for the qualitie of men not to the other sexe Ergo it not to descend to the heire female Ratio 2. If it be answered that such heire female be unfit in her owne person yet may she marry one fufficiently able to excecute the same this answer will neither satisfie nor salve the inconvenience for admit she were at age at the death of her Ancestors vnmarried being in her owne choice the great causes of the Realme should be subject to her will in the choise of her Husband which were inconvenient Ratio 3 Thirdly if such husband bee summoned the writ should make meantion thereof for otherwise it may be taken that he was chosen in his owne person and not in her right but such a Summons wherein the wife was mentioned was never seene and if by a generall writ without mentioning his wife hee is thereby made Baron in his owne right Obser 1 Having heard the arguments on both sides place doth now require that we should interpose opinion to compound this controversie This question is somewhat perplexed by different Presidents for some Presidents prove that Baronies by Writ have descended to Heires females whose Husbands have beene called to the Parliament whether in their owne or Wives right it matters not but sure it is that such Marriage gave occasion to the Summons and such Husbands and their posterities beare the dignitie of the wives Ancestors for by this controversie wee purpose not to question the right of such Noble houses Obser 2 Secondly wee must acknowledge that the Qu. is to summon to the Parliament whom she please and therefore whereas Rodulph Lord Cromell being a Baron by Writ died having two Coheires Barony of Cromwell Eliz. married to Sir Thomas Nevill and Ioan the younger to Sir Humfrey Bourchier the said Sir Humphrey was called to the Parliament as Lord Cromwell and not Sir Thomas Nevill who had married the eldest Sister Obser 3 That if a Baron by Writ die his Daughter Sister or other collaterall Heire female being his Heire and that no collaterall Heire