of us is deemed the same person with us Wherefore by the Councell and consent of the Prelats Dukes Earls Viscounts and Barons of our Kingdom being in our present Parliament we have made and created and by these presents make and create him the said Edward Prince of Wales and Earl of Chester and to the same Edward we give and grant and by this Charter have confirmed the Name Stile Title State Dignity and the honour of the said Principality that he may therein in governing rule and in ruling direct and defend We by a Garland upon his head by a Ring of Gold upon his Finger and a Virge of Gold have according to the manner invested him to have and to hold to him and to his Heirs the Kings of England for ever Wherefore we will and straightly command for us and our Heirs that Edward our Sonne aforesaid shall have the Name Stile Title State Dignity and honour of the Principality of Wales and of the County of Chester aforesaid unto him and his Heirs the Kings of England aforesaid for ever These being witnesses the Reverend Father John Cardinall and Archbishop of Canterbury Primate of all England our Chancellor and William Archbishop of York Primate of England Thomas Bishop of London John Bishop of Lincolne and William Bishop of Norwich our most welbeloved Cousins Richard Duke of York Humpbry Duke of Buckingham our welbeloved Cousin Richard Earl of Warwick Richard Earl of Salisbury John Earl of Wiltshire and our welbeloved and faithfull Cousins Ralph Cromwell Chamberlain of our House William Falconbridge and John Sturton Knights Dated at Our Palace at Westminster â—he fifteenth day of March and in the yeer of Our Raign â—hirty two And here by the way may be observed that in ancient time and in the time of the English Saxon Kings the use was as well in penning the Acts of Parliament as of the Kings Letters Patents when any lands franchises or hereditaments did passe from the King of any estate of inheritance as also in their creations of any Man unto honour and dignity the conclusion was with the signe of the Crosse in forme aforesaid that is his Testibus c. But long time that forme hath been discontinued so that at this day and for many yeares past all the Kings Patents for lands franchizes and hâ—reditaments doe conclude with teste me ipso neverthelesse in all creations of honour and dignity by Letters Patents the ancient forme of concluding with his testihus is used at this day Cookes 8. part 19. And it hath been resolved by the Judges that all Acts of Parliament and Statutes which doe concerne the Prince who is the first begotten son of the King and heire apparant to the Crowne for the time being Perpetuis futuris temporibus in all succession of ages and times be such Acts whereof the Judges and all the Realme must take conusance as of generall Statutes for every subject hath interest in the King and none of his subjects who is within his Lawes be divided from him being his head and Soveraign so that the businesse and things of the King doth touch all the Realme and namely when it doth concerne the Prince the first begotten sonne of the King and Heire apparant to the Crowne Corruscat enim Princeps radlis Regâ—s Patrâ— sii censetnr und persona cum ipso For the Prince shineth with the beames of the King his Father and is holden to be one person with him Cookes 8. part 28. Although the Prince by expresse words hath no priviledge by the great Charter of the Forrest 9 H. 3. cap. 11. for hunting in the Kings Forrests or Parks passing by them and sent for by the Kings commandment yet by construction the Prince is to take benefit and advantage thereby as well as Bishops Earls or Barons who are expressed Crompt Courts des Justices de Forrests 167. In the Parliament 31. H. 8. c. 10. an Act concerning the placing of the Kings children and Lords in the Parliament and other assemblies were amongst other things made as followeth First it is enacted by the authority aforesaid that no person or persons of what degree estate or condition whatsoever he or they be except only the Kings children shall at any time hereafter attempt or presume to sit or have place at any side of the cloth of state in the Parliament chamber neither of the one hand of the Kings Highnesse or of the other whether the Kings Majesty be there personally present or not The Prince shall not find pledges for the prosecution of any Action and therefore shall be amerced more then the King should be or the Queen his wife Vide Cooks 8. part 61. b. Of the most noble and excellent Prince that now is it is truly said that he is omni nomine numine magnus by destiny name providence of God the greatest before Cook to the Reader before his 8. Book the last leaf Neverthelesse as he is a distinct person by nature from the King so is he distinct by the Law viz. a Subject and holdeth his principalities and seigniories of the King neither shall he have all those Prerogatives which the King shal have for example when the King seizeth his Subjects lands or taketh away his goods from him having no title by order of the Law so to do In this case the Subject is to sue to his Soveraign Lord by way of Petition onely for other remedy hath he not but suit by Petition can be to none other then to the King for no such suit shall be made to the Prince but Actions as the case requireth as against a Subject Stamf. praerog ca. 22. And in token of subjection the Prince doth not upon his Posie of his Arms disdain the old Saxon word Ichdien I serve as Lambert doth mention in his Book of Perambulation of Rent 364. And there is a case that Gascoin chief Justice of Engl in the time of H. 4. did commit the Prince who would have taken a prisoner from the Bar in the Kings Bench and the Prince did humbly obey and did go at his command in which the King did greatly rejoyce that hee had such a Judge who durst minister justice upon his son and also that hee had a son so gracious as to obey Court de Banco Regis 79. Crompton A question was moved to the Justices in the first yeer of H. 7. what order should be in that present parliament for the anulling and making void certain attainders for so much as divers who were returned of that Parliamet did stand attainted of treason and all the Justices resolved That so many of the Knights of the shires or Citizens or Burgesses as stood then attainted of treason should depart out of the Parliament house at the reversall of the Act of Parliament for their attainders But â—s soon as the Act of Parliament was reversed and annuld that they and every of them that is to say Lords and Commons should come into
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
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
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
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
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
titul nosve dignitot 33. See in Cooks 8. parts 156. John Stile is bound by obligation to W. B. the obliger is afterwards made into a title of honour or a Knight the Bond is forfeited W. B. by his Atturney draweth a note or title for an originall according to the Defendants degree although it vary from the specialty as it ought to be made by the Statute but the Cursitor mistaking did make the originall onely according to such addition as was specified in the obligation omitting his degree of dignity and the entry of the Capias alias plures was according to the said Originall bnt 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 judgement doubt was if this might be amended in another Court then where the originall was made Injuries done to the name and honour of a Nobleman IN the second yeer of Richard 2. in the first Chapter It was inacted that counterfeiters of false news and of horrible and false lyes of Prelates Dukes Earls Barons and other Nobles and great men of the Realm and also of the Chancellor Treasurer Clerk of the Privy Seal Steward of the Kings House Justices of the one Bench or of the other and of other great officers of the Realm of things which by the said Prelates Lords Nobles and Officers aforesaid were never spoken touched nor thought in great slander of the said Prelates Lords Nobles and Officers whereby debates and discords might arise betwixt the said Lords and Commons which God forbid and whereof great perill and mischief might come to all the Realm and quick subversion and destruction of the said Realm if due remedy be not provided It is straightly defended upon grievous pain for to eschew the said dammages and perils that from henceforth none be so hardy to finde say or tell any false news lyes or other false reports of Prelates Lords and of other Officers aforesaid whereof discord or any slander might arise within the said Realm and he that doth the same shall incurre and have the pain ordained thereof by the Statute of Westminster in the first Chapter 33. which will that he be taken and imprisoned till he have found him of whom the word shall be moved And further By another Statute made in 22. Richard 2. cap. 11. It was moreover enacted That when the said offender is taken and imprisoned and cannot finde him that spake the words then he shall be punished by the advise of the Councell And to the intent that such evill disposed persons which by their lewd speeches and slanderous words or reports do endeavour to break or disquiet the peace of the Realm might the sooner be inquired found out and punished by a Statute made Anno 2. Phil. Mary It was further established That the Justices of Peace in every Shire City or Town Corporate within the limits of their severall Commissions shall have full power to examine hear and determine the causes aforesaid in the said two Acts of Edward the first and Richard the second specified and to put the said two Statutes and every branch in them contained in due execution that condigne punishment be not deferred from such offenders and besides the afore mentioned penalties assigned to be inflicted upon transgressors by the aforesaid Statutes every Nobleman and great Officer of the Realm against whom any scandalous words false news or lyes be spoken may prosecute against the offender an action de scandalis magnatum and recover dammages against him and in like sort may every inferiour person for any such like words of infamy against him persue an action upon his cause against the offender and recover his dammages And if any person shall exhibite a Bill into the Starrechamber against a Nobleman or other and amongst other things charge him with murther piracy robbery or other fellony or to be a procurator thereof or accessary thereunto or with any other offence which is not examinable in the said Court the defendant in the said Bill may prosecute against the complanant therein an action upon the cause and recover his dammages for his Bill was exhibited of malice by the complainant to remain of record in the said Court to the infamy and slander of the defendant and not punish him for the said offences suggested in the said Bill by a course of Justice seeing the Court of Starre-chamber hath no authority to inquire of or punish the same offence but if the complainant did suggest in his Bill of complainant any matter against the defendant which is examinable in the said Court then no action upon the case is maintainable against him by the defendant therefore though the matter surmised be meerly false for it is done in course of Justice sub judice lis est whether the matters suggested be true or false untill they be proved And in former ages speeches tending to the reproach of others were so odious that King Edgar Le. 4. ordained that his tongue should be cut out which did speak any infamous or slanderous words of another Dyer 285. and in Kelway 13. Henry 7. 27. Cooks 4. part 14. Book 2. Richard 3. 9. 6. In which Book you may read at large where the Lord Beauchampe did sue an action upon the Statute of the 2. Rich. 2. cap. 5. de scandalis magnatum against Sir Richard Crafts because he did sue a Writ of forging of false deeds against the said Lord Beauchampe and the defendant doth justifie the said slander by the use of the said Writ c. And the demurrer was good and out of the intendment of the Common Laws or Statute Laws concerning slanderers for no punishment hath been at any time appointed for suits in Law though the matter be false and for vexation only other then amerciaments or fine to the King and therefore the plantiff is sufficiently discharged against the said Lord Beauchampe not only for the time that the suite is depending but after the action tryed or otherwise ended yea though the Plantiff were non-suited or by other means it went against him for if actions of revenge upon the event it would terrifie and discharge many who have just cause to complain for fear of infinite vexations for the event and successe of suits and matters in action is uncertain Cooks 6. part 40. a. There is another foul puddle that ariseth from the same corrupt quagmire and distilleth out of a heart likewise infected with malice and envy but is divised and practised by another mean then the former which is by libelling secret slandering and defaming of another for this privy backbiter doth not by words impeach his adversary in so manifest and turbulent manner as the collerick menacer in his fury doth seeming to sit quietly in his Study he doth more deeply pinch him and infixeth a more durable wound into his fame and credit then the other boysterous fellow doth in his
they may have their writ for their discharge to the Sheriffe Rex Vic ' Com' c. quia barones regni nostri in Assizis Iuratis seurecognitionibus aliquibus poni non consueverâ—nt ut dicunt nisi eorum sacramentum adeo sit necessarium quod sine illis varitas inquire non pâ—test Tibi precipimus quod dilectum fedâ—lem nostram A. B. in Assizis Iuratis seu recognitiâ—nibus aliquibus non ponas seu poni faciat is contra voluntatem suam sine mandato nastro speciali nisi suam presentia ob aliquam causam specialiter exigatur teste c. But it is a rule in Law vigilantibus non dormientibus subveâ—iunâ— Iura For if the Sheriffe have not received any such writ and the Sheriffe have returned any Lords in Iuries or in Assizes c. and they thereupon doe appeare they shall be sworne and if they doe not appeare they shall loose their issues 35. H. 6. 46. and in such case they must purchase a writ out of the Chancery reciting their priviledge directed to the Iustices before whom such noble persons are so impannelled commanding them to dismisse him or them that were so impannelled out of the said pannell Fitz. na br 165. This priviledge hath restraint in two cases first if the Enquiry concerne the King and Common-wealth in any necessary or important degree or busines of the Realme then this priviledge is not allowed nor taketh place and therefore divers Barons of the marches of Wales were impannelled before the Bishop of Ely and after Commissioners of Oyer and Terminer to enquire of a notable out-rage committed by Gilbert de Clare Earle of Gloucester against Humphery de Bohâ—n Earle of Hereford and Essex and his Tennant in Wales the 12th yeare of Ed. 1. where John de Hastings Edmond de Mortimer Theonald de Bordmor and others Barons of the Marches challenged their Priviledges aforesaid and much insisted upon the same but it was afterwards answered by the Courts as by the words in the Records appeareth Domino quod res ista Dom. Regem Coronam dignitatem suam tangit dictum fuâ—â— Dominum Regis Johâ—n de Hastings omnibus aliis magnatibus sâ—pra nominatis quod per statu Iure Regni per conservatione dignitatis Coronae pacis suae apponunt manum â—d librum adfaciendum idquod eis ex perte Dom. Regis in jungeretur The Baronâ— aforesaid did neverthelesse persist in the Challenge and in the end both the said Earles between whom the said outrage had been perpetrated submitted themselves to the Kings grace and madâ— their Fines Secondly this Priviledge hath no place in case of necessity where the truth of the case cannot otherwise come to light for the words of the Writ in the Register before mentioned are Nisi sua presentiae ob aliquam causam specialiter exigatur c. Register 179. If a Nobleman doe bring an Action of debt upon an Accompt in case where the Party is to be examined which is alwayes intended to be upon Oath upon the truth of his cause by vertue of the Statute of 2. H. 4. cap. 8. â—t shall suffice to examine his Artorney and not himselfe upon Oath 3. H. 6. 48. Cooke 6. part 53. And this Priviledge the Law doth give to the Nobility that they are not to be arrested by any Warrant oâ— any Justice of the Peace for the peace or for the gooâ— behaviour nor by a supplicavit out of the Chanceâ—y â—â— called because it issueth out at the supplication of the partie or from the Kings Bench for such an opinion hath the Law conceived of the peaceable disposition of Noblemen that it hath beene thought enough to take their promise upon Honour in that behalfe Lamb. Iustice of Peace lib. 2. cap. â— Fol. 17. E. 44. 24. E. 3. 33. subpenae Fitz 20. And as in civill causes the like rule doth the Court of Equity observe in causes of conscience for if the defendant be a Peere of the Realm in the Star-Chamber or Court of Chancery a Subpena shall not be awarded but a Letter from the Lord Chancellor or Lord Keeper in liew thereof and if he doe not appeare no attachment shall go forth against him For in the 14. Yeare of the late Queene Eliz. the Order and rule was declared in the Parliament Chamber and so to be inrolled in the Parliament that attachment is not to be awarded by Common Law custome or president against any Lord of the Parliament Dyâ—r 315. â— and if he doe appeare he may make his Answer to the Bâ—ll of complaint upon his Honour onely and is not compelable to be sworne By the Statute 5. Eliz. chap. 1. â—t is enacted that all Knights and Burgesses of the Parliament shall take their Oath for the Supremacy and so shall Cittizens and Barons of the Cinque-ports being returned of the Parliament before they enter into the Parliament House which Oath shall be according to the tenour effect and forme of the same Oath â—erbatim which is and as it is already set forth to be taken in the Statute 1. Eliz. provided alwayes that for so much as the Queenes Majestie is otherwise sufficiently assured of the faith and loyalty of the temporall Lords of her high Court of Parliament Therefore this Act nor a any thing therein contayned shall not extend to compell any temporall person of or above the degree of a Baron of this Realme to take or Pronounce the Oath abovesaid nor to incurre any Penalty limited by this Act for not taking or refusing the same If any Peere of the Realme be sued in the Common Pleas in an Action of debt or trespasse and Processe are awarded against him by Capiaâ— or by Exigent then he may sue a Certiâ—rare in the Chancery directed to the Justices of the Common Pleas testifying that he is a Peere of the Realme and the Writ is thus Rex c. Iusticiariâ—s suis de banco salutem mandamuâ— vobis quasi G. F. miles corum nobis ad sectam alicujus per Actionem personalem in placitatus existat talem processum non alium versus ipsum in actionem predicta scire faciat qualem versus Dominos magnates Comites seu Barones Regni nostri Anglium qui ad Parl. nostra de suâ—inicionem nostra venire debent aut eorum aliquem secundum legem consuetudinem regnum nostri Anglfieri faciendum quia pred G T. vnius Baronum Regnum in pred ad Parliamentum nostri de suminiâ—ionem regia venient record hoc vobis mandaâ—us alijs quorum interest inâ—atescimus teste est Fitz. H. N B fol. 247. For unlesse the Court be judicially certified by the Kings Writ out of the Chancery that the defendant is a Lord of the Parliament Jf a Capias or Exigent issue forâ— against him no errour neither is it punishable in the Sheriffes his Bayliffes or Officers if they execute the said processe and Arrest the body of the said
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
Marquesse Earle Vicount or Baron do as the manner is by his Letters Parents give unto such new created Noblemen an Annuity or Rent for the support of his degree which they call creation Money this is so annexed unto the Dignity that by no grant assurance or any manner of Alienation it can be given from the same but is still incident and a support of the same Creation Dyer fol. 2. c. Jn all Cases wherein Suite of Law a Baron or Peere of the Realme is to be amerced other then a Duke his amercement is no â—esseâ—â—â—a 100. s. 9 E. 4. 9. 21. E. 4. 77. 38. E. 3. 31. 9. Hâ— 6. 21. but the amercement of a Duke is 10. l. 19. E. 4. 9. â— H. 6. 7. although the Statute of Magna Charta Chap. 14. be in the negative viz. Comites at Barones non â— merciantur nisi per pures suos et non nisi secundum modum delicti and yet the usage hath reduced it into a certainty also by the same Statute it appeareth that such amercements should be afferred per pures suos but for that it were troublesome to assemble Barons for so small a matter such amercements in times past hath beene afferred by the Barons of the Exchequer who sometimes were Barons of the Realme as is before in this Treatise mentioned and hereof writeth Bracton Lib. 3. Tract 2. chap. Fol. 116. viz. Comitet vero vel Barones non sunt amerciandi nisi per paces suos secundum modum delicti hoc per Barones de Scacario vel coram ipso Rege Vid. Cooke 8. part 39. sequentiae this Section is to be omitted because it is more fitly to be written hereafter If a Plaintiffe recover against a Peere of the Realme in an Action of debt or trespasse upon such a Plea pleaded by him or other default in him so that a Fine thereby doth grow to the King and thereupon a Capias per Fine issueth out against him this shall not prejudice that Nobleman so as the Plaintiffe may thereby take advantage by prayer that he shall abide in Execution for the Plaintiffe neither without his prayer not though he doe pray it by the opinion of Brian Justice 14. H. 7. 21. VVhereas by a Statute made 32. H. 8. Cap. 16. Jt is enacted that the Subjects of the Realme shall not keepe in their Families or Houses above the number of Foure Strangers borne neverthelesse by a proviso in the said Act every Lord of the Parliament hath his priviledge allowed unto him to keepe in his Family the number of six Strangers borne any thing in that Act to the contrary notwithstanding By the Statute of 24. H. 8. Cap. 13. a. A Priviledge was granted to the Nobility according to their degrees concerning their Apparell but because by a Statute made in the first Yeare of the King that now is Chap. 25. all Lawes and Statutes made concerning Apparell are taken away I leave further to speake of that matter 1. Jac. cap. 25. By the Statute of 5. R. 2. cap. 12. The King our Soveraigne Lord of his Royall Majesty defendeth the passe utterly of all manner of people aswell Clarkes as others in every Port and other Towne and place upon the Coasts of the Sea upon the paine of forfeiture of all their goods except onely the Lords and other great men of the Realme and true and Noble Merchants and the Kings Souldiers and every person then is before excepted which after publication of this Ordinance made shall passe out of the said Realme without the Kings speciall Lycence which Lycence the King willeth and commandeth that it be not from henceforth made but in one of the Ports vnder written that is to say London Sandwich Dover Southampton Plimouth Dartmouth Bristoll Yarmouth St. Buttolphe Kingstone upon Hull Newcastle upon Tine and the other parts and passages towards Ireland and the Iles pertaining to England shall forfeit towards the King as much as he hath in goods as afore is said but because this Statute is also taken away by a late Act of Parliament made in the fourth yeare of King James cap. 1. J doe not set downe this for one of the Priviledges appertaining to the Nobility at this day But Phillip Earle of Arundel Sonne of Thomas Duke of Norffolke was taken upon the Sea passing into France about the 30. yeare of the late Queene and was fined in the Star-chamber to a great summe because he did not take Shipping at one of the Ports mentioned Cromptons Courts 31. Whereas by the Statute of 2. H. 2. Parl. 2. cap. 1. Jt is ordained that the Justices of Peace in every County named of the Cuâ—rum should be resident in the Shieres wherein they are Justices there is a Proviso whereby the Lord and Peeres of the Realme named in such Commission are excepted By the Statute of 1. E. 6. cap. 12. amongst other things it is enacted that in all and every case and Cases where any of the Kings Subjects shall and may upon his Prayer have the Priviledge of his Clergie as a Clarke Convict that may make purgation in all those Cases and every of them and also in every Case and Cases of Fellony wherein the priviledge and benefit of Clergie is taken away by this Statute wilfull malice and poysoning of malice prepensed onely excepted the Lord and Lords of the Parliament and Peere and Peeres of the Realme having place and voyce in Parliament shall by vertue of this Act of Common grace upon his and their Requests and Prayer alleadging that he is a Lord or Peere of the Realme claiming the benefit of this Act though hee cannot reade without burning of the Hand losse of Inheritance or corruption of his blood bee adjudged deemed taken and used for the first time onely to all Jnstructions intents and purposes as a Clarke Convict which may make purgation without any further or other benefit of the Clergy to any such Lord or Peere from thenceforth at any time after for any cause to bee allowed adjudged or admitred any Law Custome Statute or any thing to the contrary notwithstanding By this Statute a Lord of the Parliament shall have the priviledge of his Clergy where a common person shall not viz. for the breaking of a house by day or night for robbing of any in the high way and in all other cases excepted in the Statute of 1. E. 6. 12. saving in wilfull murder and poysoning But in all other cases wherein Clergy is taken away by any Statute made since the said Statute of 1. E. 6. he is in the same Degree that a common and inferior person is but the Court will not give him the benefit of this Statute if he doe not require it Jf the Lord of the Parliament doth confesse his offence upon his Arraignment or doth abjure or is ourlâ—wed for Fellony it seemes that in those cases he may have the benefit of this Statute viz. his Clergy for that by the Statute of 18.
and for that by the lawes of this land if actuall deeds were not there was no remedy for such false compassing imaginations and confederacies had against any Lord or any of the Kings Councell or any of the Kings great Officers in his houshold as Steward Treasurer Controller and so great inconveniences did ensue because such ungodly demeanours were not straightly punished before that an actuall deed was done For remedy whereof it was by the same statute ordained that the Steward Treasurer or Controller of the Kings house for the time being shall have full authority and power to enquire by twelve sad men and discreet persons of the Check-roll of the Kings honourable houshold if any servant admitted to be his servant sworne and his name put into the Check-roll of the houshold whatsoever he be serving in any manner office or roome reputed had and taken under the estate of a Lord make any confederacies compassings conspiracies imaginations with any person or persons to destroy or murder the King or any Lord of this Realme or any other person sworne to the King Councell Steward Treasurer or Controller of the Kings house that if it be found before the said Steward for the time being by the said twelve men that any such of the Kings servants as is aforesaid hath confederated compassed conspired or imagined as abovesaid that he so found by the enquiry be put thereupon to answer and the Steward Treasurer or Controller or two of them have power to determine the same matter according to the law and if hee be put in tryall that then he be tryed by other twelve sad men and discreet men of the same houshold and that such misdoers have no challenge but for malice and if such misdoers be found guilty by confession or otherwise that the said offence be adjudged felony and they to have judgment and execution as felons attainted ought to have by the Common law In the statute made in the second yeare of H. 5. cap. 10. authority is given to the Sheriffe and other the Kings Justices for the better suppressing of Riots and Routs c. to raise Posse Comitatus the power of the County and the same liberty doth the Common law give in many other cases Neverthelesse may not the Sheriffe upon such authority command the person of any Nobleman to attend that service but if the Sheriffe upon a Supplicavit against any Nobleman in that case doe returne that he is so puissant that he cannot or dare not arrest him the Sheriffe shall be grievously amerced for such his returne For by the writ under the Great Seale of the King commandement is to all Archbishops Bishopsi Dukes Earles Vicounts and Barons and to all liege men of the County to be ayding unto him in that which to his office appertaineth And therefore by intendment no person whatsoever can resist the execution of the said writ of the King Also the Sheriffe may by his discretion levie three hundred men if need be to aid him in that behalfe Cromptons Justice 134. 3. H. 7. 1. Cookes 5. part 71. b. The words of the great Charter of the Forrest in the eleventh Chapter are as followeth Every Archbishop Bishop Earle or Baron comming to us at our commandement and passing by our Forrest it shall be lawfull for him to take one beast or two by the view of the Forrester if he be present or else he shall cause one to blow a Horne for him that he seeme not to steale our Deere This statute doth speake but of Archbishops Bishops Earles and Barons yet if a Duke Marquesse or Viscount which be Lords of Parliament be comming towards the King by his commandement they also shall have the benefit of this article So if the King send to any of the Lords aforesaid to come to his Parliament or send to him by writ of Subpoena to appeare in the Chancery before his Councell or send for him by his missive or by Messenger or Serjeant at Armes in all these cases he shall have the benefit of this statute because they came at the Kings commandement The same Law is if a Scire facias goe out of the Chancery or Kings Bench to a Lord of the Parliament but if such processe goe forth for a Lord to appeare before the Justices of the Common Pleas or before the Barons of the Exchequer and he commeth upon that he shall not have the benefit of the statute for he doth not come unto the King and the words be veniens ad nos and all the processe which are made out of the Chancery and Kings Bench are quòd sit coram nobis and so are the Processe out of the Star-chamber Also Lords which come to visite the new King after the death of his Father though not sent for shall have the priviledge and so note this statute is a warrant dormant to such Lords which is also to be understood as well of their returning homewards as of their comming towards the King Manwood Forrest Lawes cap. 181. Cromp Courts 167. b. Note this statute doth give licence to kill or hunt in the Kings Parks though the letter of the statute be transientes per forrestam nostram Passing by our Forrest Cromptons Court 168. Note in certain cases the Law doth give priviledge to the Sons or Brethren of Noblemen though themselves be not of that degree Vide 21. H. 8. cap. 13. 7. E. 6. cap. 5. CERTAINE CASES WHEREIN A LORD of the Parliament hath no PRIVILEDGE THe King may by his absolute power commit a Nobleman to prison durante beneplacito suo from whence he cannot be discharged by bail or mainprise or by the common writ de homine replegiando And by the same power it is if a Noble person bee committed to prison by the Kings Councell for they are incorporate to his Highnesse and do command as with the Kings mouth And the same law is if a Noble be committed to prison by the absolute commandement of the Kings Judges sitting in their places of Judicature Stamf. lib. 2. cap. 18. fol. 72. 1. as you have before when the Prince himself was committed by the chiefe Justice sitting in the Kings Bench and hee was not baileable Also if a Capias and an Exigent may bee awarded by the Iustices out of their ordinary Jurisdiction against such persons upon an Inditement for Felony or Treason as common experience sheweth The statutes of Praemunire are 27. E. 3. cap. 1. 16. R. 2. cap. 5. upon which statutes an Abbot which was a Lord of the Parliament was impleaded and he did pray priviledge to appeare by an Atturney and by the rule of the Court he could not because the statute is generall and against it but by speciall writ out of the Chancery he might And so in case where he doth pray to be received For if a Lord of the Parliament holding lands of another in Fee simple doth forbeare or with-hold to doe and pay his services due to his
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