Authority of Parliament made in the Eleventh of King Edward aforesaid and therefore to supply that defect in the Fifth of Edward the Third he was created Duke of Cornwall by special Charter Elizabeth eldest Daughter of King Edward the Fourth was not a Dutchess of Cornwall although she was the Firstbegotten Daughter of Edward the Fourth for the Limitation is to the First-begotten Son Henry the Eighth was not in the life of his Father King Henry the Seventh after the death of his eldest Brother Arthur Duke of Cornwall by force of the said Creation for although he was sole Heir apparent yet he was not his eldest begotten Son And the Opinion of Stamford a Learned Judge hath been That he shall have within his Dukedom of Cornwall the King's Prerogative because it is not severed from the Crown after the form as it is given for none shall be Inheritor thereof but the King 's of the Realm For example whereas by Common Law if a man hold divers Mannors or other Lands or Tenements of divers Lords all by Knights Service some part by Priority and ancient Feoffment and other Land by Posterity and a later Feoffment and the Tenant so seized dieth and his Son and Heir within Age in this case the custody and wardship of the Body and his marriage may not be divided amongst all the Lords but one of them only shall have right unto it because the Body of a man is intire And therefore the Law doth say That the Lord of whom some part of those Lands are holden by Priority and by the same Tenure of Chivalry shall have it except the King be any of the Lords for then though the Tenant did purchase that Land last yet after his death the King shall be preferred before any of the other Lords of whom the Tenant did hold the Priority And so shall the Duke of Cornwall in the same Case have the Prerogative if his Tenant die holding of him but by posterity of Feoffment for any Tenure of his Dutchy of Cornwall although the same Duke is not seized of any particular Estate whereof the Reversion remaineth in the King for the Prince is seized in Fee of his Dukedom as beforesaid Iohn of Gaunt the fourth Son of King Edward the Third took to Wife Blanch Daughter and Heir of Henry Duke of Lancaster who had Issue Henry King of England so that the said Dutchy of Lancaster did come unto the said Henry by descent from the party of his Mother and being a Subject he was to observe the Common Law of the Realm in all things concerning his Dutchy For if he would depart in Fee with any thereof he must have made Livery and Seisin or if he had made a Lease for life reserving Rent with a Re-entry for default of payment and the Rent happen to be behind the Duke might not enter without making his Demand or if he had alienated any part thereof whilst he was within Age he might defeat the Purchaser for that Cause and if he would grant a Reversion of an Estate for life or years in being there must also be Attornment or else the Grant doth not take effect But after that he had deposed King Richard the Second and did assume the Royal Estate and so had conjoyned his Natural Body in the Body Politick of the King of this Realm and so was become King then the possession of the Dutchy of Lancaster was in him as King but not as Duke which degree of Dignity was swallowed up in that of the King for the lesser must always give place to the greater And likewise the Name of the Dutchy and the Franchises Liberties and Jurisdictions thereof when in the King's Hands were by the Common Law extinct and after that time the possessions of the Dutchy of Lancaster could not pass from Henry the Fourth by Livery of Seisin but by his Letters Patents under the Great Seal without Livery of Seisin and with Attornment And if he make a Lease for Life being Duke reserving a Rent with a Re-entry for default of payment and after his Assumption of the Crown his Rent happen to be unpaid he might Re-enter without Demand for the King is not bound to such personal Ceremonies as his Subjects are Therefore to have the said Dutchy to be still a Dutchy with the Liberties to the same as it was beâ—ore and to alter the order and degree of the Lands of the Dutchy from the Crown the said King Henry the Fourth made a Charter by Authority of Parliament which is entituled Charta Regis Hen. 4. de separatione Lancastriae à corona authoritate Parliamenti Anno Regni sui primo as by the Tenor thereof may appear And so by Authority of that Parliament the said Dutchy with all the Franchises and Liberties was meerly resigned from the Crown and from the Ministers and Officers thereof and from the Order to pass by such Conveyance which the Law did require in the possessions of the Crown But now the possessions of the Dutchy by force of the said Statute stood divided from the Crown and ought to be demeaned and ordered and pass as they did before Henry the Fourth was King yet there is no Clause in the Charter which doth make the person of the King who hath the Dutchy in any other Degree than it was before But things concerning his pleasure shall be in the same estate as they were before such separation insomuch as if the Law before the Charter by Authority of Parliament adjudged the person of the King always of full Age having regard unto his Gifts as well of the Lands which he doth inherit in the right of his Crown or Body Politick it shall be so adjudged for the Dutchy Land after the said Statute for the Statute doth go and reach unto the Estate Order and Condition of the Lands of the Dutchy but doth not extend unto the person of the King who hath the Lands in points touching his person Neither doth that distinguish or alter the preheminences which the Law doth give to the person of the King For if King Henry the Fourth after the said Act had made a Lease or other Grant of parcel of the Dutchy by the Name of Henry Duke of Lancaster only it had been void for it should have been made in the Name of Henry the Fourth King of England And thus stood the Dutchy of Lancaster severed from the Crown all the Reign of Henry the Fourth Henry the Fifth and Henry the Sixth being politickly made for the upholding of the Dutchy of Lancaster their true and ancient Inheritance however the right Heir to the Crown might in future time obtain his right thereunto as it happened in King Edward the Fourth's time but after the said King Edward obtained his right unto the Crown in Parliament he attainted Henry the Sixth and appropriated and annexed the said Dutchy again to the Crown as by the Statute thereof made in the first of the King's Reign
Heraldry written by Iohn Guillim about fol. 18. That Sisters are allowed no differences of Badges in their Coat-Armour by reason that by them the name of the House cannot be preserved but are admitted to the Inheritance equally and are adjudged but one Heir to all intents and purposes whatsoever And the knowledge of this point in these days is worthy to be enquired into for this is to be observed out of Presidents and to be acknowledged of every dutiful Subject that the King can advance to Honour whom he pleaseth And therefore whereas Radulph Cromwell being a Baron by Writ died without Issue having two Sisters and Coheirs Elizabeth the eldest married unto Sir Thomas Nevill Knight and Ioan the younger married to Sir Humphrey Bowcher who was called to Parliament as Lord Cromwell and not the said Sir Thomas Nevill who married the eldest Sister And Hugh Lupus the first and greatest Earl of Chester Habendum sibi haeredibus adeo libere per gladium sicut iple Rex tenuit Angliam per tenorem Hugh died without Issue and the Inheritance of his Earldom was divided amongst his four Sisters and the eldest had not the Seigniory entire unto herself If a Woman be Noble by Birth or Descent with whomsoever she doth marry although her Husband be under her Degree yet she doth remain Noble for Birth-right est Character indelebilis Other Women are enobled by Marriage and the Text saith thus viz. Women ennobled with the Honour of their Husbands and with the Kindred of their Husbands we worship them in the Court we decree matters to pass in the Names of their Husbands and into the House and Surname of their Husbands do we translate them But if afterwards a Woman do marry with a Man of a baser Degree then she loseth her former Dignity and followeth the condition of her latter Husband And concerning the second disparaged Marriage as aforesaid many other Books of the Law do agree for these be Rules conceived in those Cases Si mulier nobilis nupserit ignobili desinit esse nobilis eodem modo quo quid constituitur dissolvitur It was the Case of Ralph Howard Esq who took to Wife Anne the widow of the Lord Powes they brought an Action against the Duke of Suffolk by the Name of Ralph Howard Esq and the Lady Anne Powes his Wife and exception was taken for mis-naming of her because she ought to have been named of her Husband's Name and not otherwise and the Exception was by the Court allowed For said they by the Law of God she is Sub potestate viri and by our Law her Name of Dignity shall be changed according to the Degrees of her Husband notwithstanding the Courtesie of the Ladies of Honour and Court Dyer 79. And the like is also in Queen Maries Reign when the Dutchess of Suffolk took to her Husband Adrian Brook Title Brief 54. 6. And many other Presidents have been of later times And herewith agreeth the Civil Law Digest lib. 1. title q. lege 1. In this Case of acquired Nobility by marriage if question in Law be whereupon an Issue is taken between the Parties that is to say Dutchesses are not Dutchesses Countesses are not Countesses and Baronesses are not Baronesses the Trial whereof shall not be by Record as in the former Case but by a Jury of Twelve men and the reason of the diversity is because in this Case the Dignity is accrued unto her by her Marriage which the Lawyers term Matter in Fact and not by any Record But a Noble Woman by marriage though she take to her second Husband a man of mean Degree yet she may keep two Chaplains according to the Proviso in the Statute of 11. Hen. 8. Case 13. for and in respect of the Honour which once she had viz. at the time of the Retainer And every such Chaplain may purchase Licence and Dispensation c. And Chaplains may not be Non-residents afterwards And forasmuch as the retaining of Chaplains by Ladies of great Estate is ordinary and nevertheless some questions in Law have been concerning the true understanding of the said Statute Law I think it not impertinent to set down subsequent Resolutions of the Judges touching such matters So long as the Wife of a Duke is called Dutchess or of an Earl a Countess and have the fruition of the Honour appertaining to their Estate with kneeling tasting serving so long shall a Baron's Widow be saluted Lady as is also a Knight's Wife by the courtesie of England quamdiâ— matrimonium aut viduitas uxoris durant except she happen to clope with an Adulterer for as the Laws of this Kingdom do adjudge that a Woman shall lose her Dowry in that as unto Lands Tenements and Justice so doth the Laws of Gentry and Nobleness give Sentence against such a Woman advanced to Titles of Dignity by the Husband to be unworthy to enjoy the same when she putting her Husband out of her mind subjects her self unto another If a Lady which is married come through the Forest she shall not take any thing but a Dutchess Marchioness or Countess shall have advantage of the Statute de Charta Forest. 12 Artic. during the time that she is unmarried This is a Rule in the Civil Law Si filia Regis nubat alicui Duci vel Comiti ducetur tamen semper regalis As amongst Noble Women there is a difference of Degrees so according to their distinct Excellencies the Law doth give special priviledges as followeth By the Statute 25 Edw. 3. cap. 1. it is High Treason to compass or imagine the death of the Queen or to violate the King's Companion The King's Response is a sole person except by the Common Law and she may purchase in Feesimple or make Leases or Grants with the King she may plead and be impleaded which no other married Woman can do without her Husband All Acts of Parliament for any cause which any way may concern the Queen are such Statutes whereof the Judges ought to take Recognizances as of general Statutes though the matter doth only concern the capacity of the Queen yet it doth also concern all the Subjects of the Realm for every Subject hath interest in the King and none of his Subjects within his Laws are divided from the King who is Head and Sovereign so that his business concerns all the Realm and as the Realm hath interest in the King so and for the same Reason is the Queen being his Wife A man seized of divers Lands in Fee holden by Knight's Service some by Priority that is by ancient Feoffment holden of others and some other part holden of the King in posteriority the King granteth his Seigniory to the Queen during her life and afterwards the Tenant dieth his Son within Age in this case he shall have the Wardship of the Body and have the Prerogative even as the King himself should have had The Queen Consort or Dowager shall not be amerced if she be Nonsuited
Parliament by Writ as Baron such Heir Male omitting the Husband of the Issue of such Heir Female And this also appeareth by a notable Controversie in the time of Henry the Seventh between Sir Robert Willoughby Lord Brook and Richard Lord Lattimer for the Barony of Lattimer which in effect was The said Lord Brook did challenge the Barony of Lattimer as Coâ—in and Heir of Elizabeth his Great-grandmother who was Sister and Heir of Iohn Nevill Lord Lattimer who died without Issue And hereupon exhibited a Petition to Henry the Seventh in Parliament whereunto Richard Lord Lattimer was called to answer because he then enjoyed the said Title and Dignity The said Richard Lord Lattimer did by his Answer shew That after the death of the said Iohn Nevill Lord Lattimer without Issue the said Elizabeth was his Sister and next Heir and married unto Thomas Willoughby Knight second Son of the Lord Willoughby But Henry the Sixth for that the said Iohn Nevill Lord Lattimer was dead without Issue and that the next Heir was Female did therefore call to the Parliament George Nevill Knight second Son of Henry Earl of Westmoreland to be Lord Lattimer as Cosin and next Heir Male of the said Iohn Nevill Lord Lattimer which George was Grandfather of the said Richard Lord Lattimer Father of the said Richard In debate of which cause the Question now in hand namely Whether a Barony by Writ may descend to the Heirs Female was advisedly considered of by the King and his Nobility in Parliament and in the end adjudged with the said Richard Lord Lattimer which President doth afford us two Judgments in this point And in the time of Henry the Sixth when the Writ was directed to the said Sir George Nevill Knight whereby he was summoned as Lord Lattimer to the Parliament and as Heir Male and not the said Thomas Willoughby Knight husband of the said Elizabeth Heir Female And the second Judgment was given in the time of Henry the Seventh whereby the said Barony was adjudged to the said Richard Lord Lattimer coming out of the special Heir Male against the Lord Brook descended of the general Heir Male. But here in this President before remembred of the Barony of Dacres may be objected to encounter this Conclusion for there was an Heir Female married unto Sir Richard Fines who by the Declaration of King Henry the Sixth was Baron of Dacres in right of his wife And there was also Ralph and Humphrey the Heirs Males before whom the Heir Female was preferred by the censure of Henry the Sixth and Edward the Fourth This Objection is easily answered for although Henry the Sixth through the Princely favour which he bore unto Sir Richard Fines had declared him to be Lord Dacres in right of his wife yet notwithstanding did Ralph Dacres being Heir Male then unto the Lord Dacres and by that name was attainted in Parliament Anno primo Hen. 4. Wherefore the reason why the Heir Male could not be regarded was the said Attainder of the said Raâ—ph and Humphrey his brother and therefore when Humphrey in the 12 th of Edward the Fourth laboured to have the said Attainder Reversed he submitted himself to the Arbitrement of the King who to satisfie both Competitors both having deserved of him after he had admitted them to his favour he allowed one to be Lord Dacres and the other to be the Lord Dacres of Gillesland And thus much concerning the second Point Whether a Barony by Writ may descend unto the Heir Female The third Point As concerning the third Point admitting such Descent to be to the Heir Female when there is no Heir Male that may claim the same for then doth this Question take place Whether the husband of such an Heir Female shall enjoy the Dignity in right of his wife or no Wherein we are to rest upon a Resolution had and given to this special Question which was in this manner In the time of Henry the Eighth when Mr. Winby took upon him the style of Lord Talbois in right of his wife having no Issue by her The said King assisted both by Civil and Temporal Lawyers gave Sentence That no husband of a Baroness in her right should use that Style and Dignity until he had by her a Child whereby she should become Tenant by Courtesie unto her Inheritance The special Reasons that occasioned this Sentence were two First It should be convenient for her husband this day to be a Baron and a Peer of the Realm and to morrow by the death of his wife to become none and without the default of the party Secondly If he had Issue by wife and were entituled to be Tenant by the Courtesie of England of his wives Lands if he shall not also bear the Style and Dignity of his Wives Barony then should the Son after the death of his mother dying in the life time of his father be a Baron and Lord without Land for so the father should have the Land as Tenant by Courtesie and the Son the Lordship without Land And thus much said concerning the Nature Quality and Estate of a Baron by Writ and for the Resolution of the several points and Articles of the Question proposed may suffice CHAP. XII Barons by Patent which is the third kind of Barons mentioned in the former Division of Barons THere is also a fourth means of Creation viz. by Act of Parliament but the first two mentioned and this other by Patent is most usual for the Honour of the King for thereby the Donation doth proceed from his Majesty only as from the Fountain of Honour But when the Creation is by Parliament the King ever is one and may be said to be Donor A Baron therefore by Creation by reason of Letters Patents is that noble Person whom the King or any of his Progenitors Kings of this Realm have created Baron by such their Letters Patents began in the Reign of King Richard the Second This kind of Dignity of a Baron shall be of such continuance in Descent or otherwise as shall be limited in the Habendum in such Letters Patents contained for it may be but for the life of him to whom it is given or for term vanter vie as some hold Opinion in the 32 of Hen. 6. for cujus est dare est disponere It may be in special in our general Tayl and this kind of Tayl was usual before the Statute made decimo tertio of Edw. 1. by which Estate Tayl of Lands and Tenements was created as appeareth by the Patent whereby Hubert de Burgo was made Earl of Kent in the time of Henry the Third by these words Habendum sibi haeredibus suis de corpore Margaretae uxoris sui sorors Alexandri Regis Scotiae procreatis pro defectu talis exitus remanere in directis haeredibus dicti Huberti And that Estates intayl are at this Day of Titles of Honour by the said Statute of Westminster the second Question If a
to the party for so it is termed in Brook's Title Additions 44. but an Honour to the Kingdom And therefore it hath been an ancient Prerogative of the Kings of this Realm at their pleasure to compel men of worth to take upon them that Degree upon payment of a Fine But we see by Experience in these days that none are compelled thereunto and that is the reason wherefore if the Plaintiff be Knighted having the Writ it shall abate because he hath changed his name and that by his own Act. And for that cause also by the Common Law not only the King but every Lord of a Mannor ought to have of every of his Tenants a reasonable Aid to make his eldest Son a Knight And all Lands are subject to these Aids except only ancient Demesne and grand and petty Serjeanty-Tenures as the Law hath â—een anciently delivered And in Io. Shelden 131. where also it is said one that wrote a little after the Statute of Westminster the first allows as a good barr to the Avowry for the Tenant to plead that the Father himself is no Knight so that one not Knighted cannot claim this Ayd of his Tenants Briâ—an cap. de prices de avers And it was at the liberty of the Lord to make more or less of his Tenants by the Common Law in this Case but by the Statute of Westminster the first Chap. 35. it is put in contrary viz. forasmuch as before this time reasonable Aid to make ones Son Knight or to marry his Daughter was never put in certain nor how much should be taken nor at what time whereby some levied unreasonable Aid and more often than seemed necessary whereby the people were sore grieved It is provided that from henceforth of a whole Knight's Fee there be taken but Twenty shillings and of Twenty pounds in Land holden in Soccage Twenty shillings and of more more and of less less after that rate And that none shall levy such Aid to make his Son a Knight until his Son be of fifteen years old nor to marry his Daughter until she be of the Age of seven years And of that there shall be mention made in the King's Writs formed on the same when any will demand it And if it happen that the Father after he hath levied such Aid of his Tenants die before he hath married his Daughter the Executors of the Father shall be bound to the Daughter for so much as the Father received for the Aid And if the Father's Goods be not sufficient his Heir shall be charged therewith unto the Daugher And this Aid is so incident that although the Lord do confirm unto the Tenant to hold by Fealty and certain Rent and release unto him all other Services and Demands yet shall he have the Aid to make his eldest Son a Knight But the King was not bound by the Statute aforementioned because the King was not named in the Statute Therefore by the Statute 25 Edw. 3. chap. 11. the King's Aid were brought to a like value The intention of the Law is That an Heir until the Age of One and twenty years is not able to do Knights Service But such a presumption of Law doth give place to a Judgment of proof to the contrary as Bracton saith Sâ—abitur presumptioni donec probetur in contrarium And therefore when the King who is the Sovereign Judge of all Chivalry hath dubbed him a Knight he by this hath adjudged him able to do him Knight's Service and all men are concluded to say the contrary to it And therefore such an Heir being made a Knight either in the life time of his Father or afterwards during his minority shall be out of Ward and Custody both for his Land and Body and marriage by the Award of the ancient Common Law By reason also that the Honour of Knighthood is so great that it is not to be holden under by any yet if the King do create such an Heir within Age a Duke Marquess Earl Viscount or â—aron by this he shall not be out of Ward and Custody both for his Land and Body And therefore it is propounded by the Statute of Magna Charta chap. 3. Ita tamen quod si ipse dum infra aetatem fuerit fiat miles nihilominus terra remaneat in Custodia Dominorum suorum So that although such an Heir within Age be made Knight and thereby to this purpose is esteemed as of full Age yet the Land shall remain in Custody of the Lord till his Age of One and twenty years by the purview of the said Act. Question If the Son and Heir of the Tenant of the King by Knights Service c. be made Knight in Paris by the French King whether he shall be out of Wardship after the death of his Father or no for thereby he is a Knight in England Coke's seventh part b. 2 Edw. 4. fol. tamen vide in Coke's sixth part 74. b. mention is only made of Knights made by the King himself or by his Lieutenant in Ireland But when the King doth make an Heir apparent within Age of a Tenant by Knights Service a Knight in the life of his Ancestor and after the death of his Ancestor the said Heir being within Age shall in this Case be out of Ward and shall pay no value for his marriage neither shall the Lord have the Custody of the Land for in that Case by the making of him Knight in the life of his Ancestor he is made of full Age so that when his Ancestor dieth no interest either in the Body or in the Land shall invest in the Lord but the Knight may tender his Livery as if he were of full Age And in that case the King shall have primier Seisin as if he had been One and twenty years of Age at the time of the death of his Ancestor and not otherwise For the Statute of Magna Charta doth not extend unto it for the purview of it doth extend only when the Heir in Ward infra aetatem is made Knight then remanet terra in Custodia c. But when the Heir is made Knight in the life of his Ancestor then the Custody cannot remain which never had any inception or essence Also when the Heir after the death of his Ancestor within Age is made Knight if after tender made to him he within Age do marry elsewhere yet he shall not pay the forfeiture of his marriage for by the making him Knight he is out of Ward and Custody of his Lord for then he ought to be sui Iuris and may imploy himself in feats of Arms for defence of the Realm c. and therefore may not be within the Custody of another and none shall pay any forfeiture but when after any refusal he doth marry himself during the time when he is under the custody and keeping of his Lord And this doth appear by the Statute of Merton chap. 6. Si se mariturierit sine licentia
Adversaries in this manner viz. The Writ of Summons to the Parliament whereby the Baron by Writ hath his Original is to call that Honourable and Worthy Person so summoned to the number of that Right High and Honourable Assembly and to be a Judge to sit hear and determine Life and Member Plea and right of Land if there shall come occasion likewise to give Counsel and Advise in the most mighty Affairs of the Realm But these things are convenient for the quality and condition of men unfitting and altogether unbeseeming the Sex of women Ergo having respect unto the scope and final purpose of such Writs such Inheritances should only descend unto the Heir Female The Second Argument contra Secondly If it shall be answered That although the Heir Female to whom such Inheritance is descended be unfit in her own person for the accomplishing of these things yet she may marry with one sufficiently able for her and in her behalf to execute the same This Answer will neither satisfie nor salve the inconveniences For admit that such an Heir Female were at full Age at the death of her Ancestor unmarried for it doth lye in her own choice then whom shall be her Husband The Third Argument contra Thirdly If such Husband shall be called by the right of his Wife the Writ shall make some mention thereof for otherwise it may well be taken that the Husband was chosen in his own person and in behalf of himself and not in regard of his wife or such pretended Dignity descended unto him But there was never such a Writ of Summons seen wherein the wife was mentioned And if the husband of such a wife have been called to the Parliament which is always by General Writ not mentioning his wife he is thereby made a Baron of himself by virtue of the said Writ Having thus heard both sides to dispute place it doth now require to interpose Opinion to compound the Controversie This point in queâ—tion is somewhat perplexed by means of difficult Presidents For first it is observed That some Presidents do prove that Baronies by Writ have descended unto Heirs Female whose husbands have been called to Parliament whether in regard of themselves or in respect of their wives right it maketh no matter but since it is that the marriage of such Ladies gave that occasion to be summoned and such husbands and their Poâ—â—erity have and do lawfully bear the same Title of Dignity which the Ancestors of such a wife did before rightfully bear For by this Controversie theâ—e is no purpose to call the right of such Noble Houses into question Howbeit Secondly this is to be observed out of the Presidents and to be acknowledged of every dutiful Subject That the King's Majesty is nevertheless at liberty to call to his High Council of Parliament whom he shall in his Princely Wisdom think fit which by his Majestie 's Noble Progenitors have in former Ages likewise observed And therefore whereas Ralph Lord Cromwell being a Baron by Writ died without Issue having two Sisters and Coheirs Elizabeth the eldest who married Sir Thomas Nevile Knight and Ioan the younger who married Sir Humphrey Butcher Knight who was called to Parliament as Lord Cromwell and not the said Sir Thomas Thirdly It is to be observed That if a Baron by Writ die without Heir Male having his Daughter Sister or other Collateral Heir Male that can challenge the Land of the said Baron deceased by any ancient entail or otherwise the Title of such an Heir Female hath heretofore been allowed as by the honourable Opinions and Relations of the Right Honourable the late Commissioners in the Office of Earl-Marshal signified unto the late Queen upon Petition of the Sister and Heir of Gregory Lord Dacres deceased may appear Moreover in the same Pedigree of the Lord Dacres it was expressed That Thomas sometimes Lord Dacres had issue Thomas his eldest Son Ralph his Second and Humphrey his third Thomas the eldest died in the life of his Father having issue Ioan Daughter and Heir who was married to Sir Richard Fines Knight and after Thomas Lord Dacres his Grandfather and Father to the said Ralph and Humphrey died after whose death Henry the Sixth by his Letters Patents bearing date at Westminster the Seventh of November in the Seventh year of his Reign reciting the said Pedigree and Marriage doth by his said Letters Patents accept declare and repute the said Richard Fines to be Lord Dacres and one of the Barons of the Realm But afterwards in the time of Edward the Fourth the said Humphrey Dacres after the attainder of the said Ralph and himself by an Act of Parliament which was the first of Edward the Fourth And after the death of the said Ralph and the Reversal of the said Act by another Act in the Twelfth of Edward the Fourth the said Humphrey made challenge unto the said Barony and unto divers Lands of the said Thomas his Father whereupon both parties after their Title had been considered of in Parliament submitted themselves to the Arbitrement of King Edward the Fourth and entred into Bond each to other for the performance thereof whereupon the said King in his Award under his Privy Seal bearing date at Westminster the Eighth of April Anno Regni sui decimo tertio did Award that the said Richard Fines in the right of Ioan his wife and the Heirs of his body by the said Ioan begotten should keep have and use the same Seat and Place in every Parliament as the said Thomas Dacres Knight Lord Dacres had used and kept and that the Heirs of the body of the said Thomas Dacres Knight then late Lord Dacres begotten should have and hold to them and to their Heirs the Mannor of Holbeach And further That the said King Edward did Award on the other part that the said Humphrey Dacres Knight and the Heirs Males of the said Thomas late Lord Dacres should be reputed had named and called the Lord Dacres of Gillesland and that he and the Heirs Males of the body of the said Thomas then late Lord Dacres should have use and keep the place in Parliament next adjoyning beneath the said place which the said Richard Fines Knight Lord Dacres then had and occupied And that the Heirs of the body of the said Ioan his wife shall have and enjoy and that the Heirs Males of the said Thomas Dacres late Lord Dacres should have to them and the Heirs Males of their bodies begotten the Mannor of Iothington c. And so note that the name of the ancient Barony namely Gillesland remained unto the Heir Male to whom the Land was entailed Moreover this is specially observed If any Baron by Writ do die having no other Issue than Female and that by some special entail or other assurance there be an Heir Male which doth enjoy all or great part of the Lands Possessions and Inheritances of such Baron deceased the Kings have used to call to the
to prejudice him touching his Mothers Inheritance who also did not offend or contrariwise especially in case where the Mother was seized of an Estate in Feesimple either in Lands or Tenements or Title of Honour And this was the case if I be not mistaken of Philip late Earl of Arundel notwithstanding the Attainder of Thomas Duke of Norfolk his Father for he had that Earldom in right of his Mother But they do agree That if the Lands or Tenements or a Title of Honour be given to a man and to his wife in tayl who hath Issue The Father is attainted of Treason and executed though this forfeiture of the Husband shall be no barr to the Wife concerning her interest by Survivorship yet their Issue is barred by the Statute 26 Hen. 8. cap. 13. and his Blood corrupted For in that case the Heir must necessarily make himself Heir as well of the Body of the one as of the other And yet the words of the Statute 32 Hen. 8. cap. 28. are That no Fine Feofâ—ment or other Act or Acts hereafter to be made or suffered by the Husband only of any Mannors Lands Tenements or Hereditaments being the Inheritance or Freehold of his Wife during the Coverture between them shall in any wise be or make any discontinuance or be prejudicial to the said Wife or to her Heirs or to such as shall have right title or interest to the same by the death of such Wife or Wives but the same Wife or her Heirs and such other to whom such right shall appertain after her decease shall or may then lawfully enter into all such Mannors Lands Tenements and Hereditaments according to their Rights and Titles therein For there is Adversity taken and agreed for Law between a discontinuance which doth imply a wrong and a lawful Baron which doth imply a right And therefore if Land be given to the Husband and the Wife and to the Heirs of their Bodies begotten and the Husband levies a Fine with Proclamation or do commit High Treason and dieth and the Wife before or after Entry dieth the Issue is barred and the Comisee for the King hath right unto the Lands because the Issue cannot claim as Heir unto both And with this doth agree Dyer 351. b. adjudged vide 5 Hen. 7. 32. Cott's Assize Coke's eighth part 27. where it is resolved That the Statute 32 Hen. 8. doth extend only unto Discontinuances although the Act hath general words or be prejudicial to the Wife or her Heirs c. but the conclusion if she shall lawfully enter c. according to their right and title therein which they cannot do when they be barred and have no right title and interest And this Statute doth give advantage unto the Wife c. so long as she hath right but it doth not extend to take away a future barr Although the Statute doth give Entry without limitation of any time nevertheless the Entry must attend upon the right and therefore if the Wife be seized in Feesimple and her Husband levy a Fine with Proclamation unto another and dieth now the Wife may enter by force of the Statute for as yet that Fine is not any barr unto her but her right doth remain which she may continue by Entry but if she do surcease her time and the five years do pass without Entry c. now by force of the Fine with Proclamation and five years past after the death of her Husband she is barred of her right and by consequence she cannot enter And the Statute doth speak of Fine only and not of Fine with Proclamation If there be Father and Son and the Father be seized of Lands holden in Capite or otherwise by Knight's Service the King doth create the Son Duke Earl or other Degree of Nobility and afterwards the Father dieth his Son being within the Age of One and twenty years he shall be no Ward but if the King had made him Knight in the life of his Father he should not have been in Ward after the death of his Father neither for the Lands descended nor for his Marriage though he be within Age. NOBILITY AND LORDS IN REPUTATION ONLY CHAP. XIV THERE are also other Lords in Reputation and Appellation who nevertheless are not de jure neither can they enjoy the priviledges of those of the Nobility that are Lords of the Parliament The Son and Heir of a Duke during his Father's life is only in courtesie of Speech and Honour called an Earl and the eldest Son of a Marquiss or an Earl a Lord but not so in legal proceedings or in the King's Courts of Judicature But the King may at his pleasure create them in the life of their Ancestors into any Degree of Lords of the Parliament And according to the German Custom all the younger Sons of Dukes and Marquisses are called Lords but by courtesie only which Title descends not to their Heirs A Duke or other of the Nobility of a Foreign Nation doth come into this Land by the King 's safe Conduct in which said Letters of safe Conduct he is named a Duke according to his Creation yet that Appellation maketh him not a Duke c. to sue or be sued by that name within this Realm but is only so by Reputation But if the King of Denmark or other Sovereign King come into England under safe Conduct he during his abode here ought to be styled by the name of King and to retain his Honour although not his Regal Command and Power And in this case may be observed by the way That no Sovereign King may enter into this Realm without licence though he be in League All the younger Sons of the Kings of England are of the Nobility of England and Earls by their Birth without any other Creation And if an Englishman be created Earl of the Empire or some other Title of Honour by the Emperor or other Monarch he shall not bear that Dignity in England but is only an Earl in Reputation A Lord or Peer of Scotland or Ireland is not of the Nobility or Peerage of England in all Courts of Justice although he is commonly reputed a Lord and hath priviledge as a Peer OF THE QUEEN CONSORT AND OF NOBLE WOMEN CHAP. XV. A QUEEN so called from the Sâ—xon word Cuningine as the King from Cuning by variation of Gender only as was their manner signifieth Power and Knowledge and thereby denotes the Sovereignty due unto them which they enjoyed in those days and do now in most Nations being capable of the Royal Diadem by the common right of Inheritance for want of Heirs Male But in France by the Salique Law the Sex is excluded from their Inheritance by which they debarred the English Title to their Crown There are three kinds of persons capable of the Title and Dignity of Queen amongst us and each of them different in Power and Priviledge The first is a Queen Sovereign to whom the Crown descends by Birth-right
then Countess of Killimeak in Ireland The Lady Dudley Dutchess of 〈…〉 The celebrated Beauties Barbara Villiers Dutchess of Cleaveland and Countess of Southampton and Louyse Rene Angelique de Carwell Dutchess of Portsmouth Countess of Petersfield c. Of Titles by Descent and Marriage there are Examples enough so that I need not trouble the Reader with any repetition I shall only set down some few general Observations not sufficiently discoursed of If a King's Daughter marry a Duke or an Earl illa â—emper dicitur Regalis by Law and Courtesie Noble women by descent Birthright or Creation remain Noble although they marry Husbands under that degree Also any Daughter of an Earl or Viscount that continues a Virgin or marrieth an Esquire yet she retaineth the Honour that sprung from her Parents and shall take place accordingly and be saluted by the Title of Lady If a Gentleman Knight or Peer marry a wife of ignoble Parents she shall enjoy the Title Name and Dignity of her Husband not only during his life but when she is a widow or afterwards married to an Ignoble person but this is by the Courtesie and not by the Law of the Realm Whereas on the contrary let a woman of Blood and Coat-Armour marry a Yeoman or Churle that is Ignoble and hath no Coat-Armour his Condition in point of Honour is in no respect advanced and she shall retain the Honour State and Dignity she was born unto Yet if she have iâ—â—ue by that Yeoman or Ignoble person she being an Heiress that Issue shall have liberty to bear her Coat but Sir Iohn Fern saith only for life and that on a Lozenge Shield with a difference of a Cinquefoil If a French Spanish or other woman Alien be married to a Peer of the Realm or to a Gentleman and be not denizened she is debarred all Priviledges and Titles due to her Husband nor can she claim any Dower or Joynture from him by the Laws of England Yet in some things our Laws are wonderful kind to the Female Sex especially procreandi causa As thus if a man and his wife separate for some fraud or private loathing of the Marriage Bed or the like and so continue for some years after which time the woman bringeth forth a Child which though got by another man and her Husband in all that time not having enjoyed her yet if he live in the Kingdom he must Father the Child and if before that time he had no Child that shall inherit his Lands if entailed or left without Will Also if a Wife be with Child when her Husband dieth and she marry another man before her delivery the latter Husband must own the Child which must be his Heir at Law if he were childless The Wives Dignities and Lands descend to her Heirs not to her Husband yet to encourage him to play the man the Courtesie of England is such that as the Wife hath the third part of his Estate in Lands for her Joynture during her life if a Widow so the Husband if he get his Wife with Child and that Child be heard to cry he shall enjoy all her Lands during his life The Wife can make no contract whatsoever that shall stand good in Law to the detriment of her Husband without his consent nor can she make a Will or dispose of what she hath whilst she is a Feme Covert â—he cannot be produced as a witness for or against her Husband nor shall she be accessory to his felonious acts although she receive the Goods or conceive the Fact if she be not personally an Actor therein Female Children are also by Law capable to give their consent to marriage at Seven years old and the Lord 's eldest Daughter is to have aid of his Tenants to marry her at that age though she may dissent from this Contract when she comes to Twelve but if at that Age she doth not dissent she is bound for life she may then make a Will and dispose of Goods and Chattels by it At Nine years of Age she is Dowable at Fourteen she might receive her Lands into her Hands and was then out of Wardship if she were Fourteen at the death of her Ancestor otherwise she was in Wardship till she accomplished Sixteen years and then she was free At One and twenty she is enabled to contract or alienate her Lands by Will or otherwise If there be no Son the Lands as well as Goods are equally divided amongst the Daughters who are Coheirs In ancient times Women amongst the Romans were thought worthy of enjoying peculiar favours and respect And out of their great love and honour to the Mother of Marcus Coriolanus for diverting his fury which he threatned the Citizens to their ruin for their ingratitude towards him the Citizens granted the Roman Dames the priviledge of wearing the Segmenta Aurea or Bordures of Gold and purple on their Garments They were also permitted to wear gold Ear-rings to have place on the way and in memorial of the said preservation there was erected a Temple dedicated to the Female Fortune Anne of Britain wife to Charles the Eighth of France as an ornamental Honour to several deserving Ladies instead of the Military Belt and Collar bestowed on them a Cordon or Lace and admonishing them to live chastly and devoutly and to put the greater esteem thereon the surrounded her Escocheon of Arms with the like Cordon from which Example it is now become the Custome for unmarried women to bear their Arms in form of a Lozenge which are commonly adorned with such a Cordon Ioseph Micheli Marquez for the further Honour of the Female Sex gives an Example of the Noble women of Tortosa in Aragon whom he calls Cavalleros or Knights For saith he Don Raymond last Earl of Barcellona who by right of his wife Petronilla sole Daughter and Heir to King Ramiro the Monk joyned his Principality to the Kingdom of Aragon having in the year 1149. taken from the Moors the City of Tortosa who in a few months after laid siege to the said City and reduced the Inhabitants to so great a strait that their intentions were of surrendring it up to the Moors but the women hearing thereof for the diverting their ruin put on mens Apparel and by a resolute Sally forced the Moors to raise the Seige And the Earl in acknowledgment of his thanks for this their Noble Act as a reward of Honour instituted an Order not much unlike a Military Order into which were admitted only those brave women and their Descendants The Badge which he assigned them was something like a Fryer's Capouch but of a crimson colour which they wore upon their Head-clothes Amongst the priviledges which this Earl granted them they were to be freed from all Taxes to have precedency of men in publick Meetings and that all the Iewels and Apparel of their deceased Husbands should be their own although of never so great value And these women having thus purchased this
Honour deported themselves after the manner of Military Knights of those days To look further back ancient Histories do take notice of the Amazons of old whose Fame in Arms is sufficiently known Although Noble women may not sit in Parliament in respect of their Sex yet they are in Law Peers of the Realm and all or most of the prerogatives before mentioned which to the Noblemen are belonging do appertain unto them But the Opinion of some men have been That a Countess Baronness and other women of great Estate cannot maintain an Action upon the Statute de Scandalis magnatum because the Statute 2 Rich. 2. speaketh but of Prelates Dukes Earls Barons and of the Chancellor Treasurer Privy Seal Steward of the King's Houshold and other Nobles great Officers of the Realm by which words they conceive that the meanings of the Makers of that Statute was only to provide in that case for Noblemen and not for Noble women Also if any of the King's Servants within the Check-Roll do conspire the death of any Noble woman it is not Felony within the compass of the Statute 3 Hen. 7. 18. Honourable women as before noted are of three sorts by Creation by Descent and by Marriage And the King may create any woman into any Title of Honour at his pleasure and the King by his Letters Patents openly read in Parliament without any other Investure did create Mary Fane Widow the sole Daughter of Baron of Aburgaveny Baronness de le Spencer Noble women by Descent are either those to whom the Lands holden by such Dignity do descend as Heir and they are said to be Honourable by Tenure or by whose worthy Ancestors to whom they were Heirs was seized of an Estate descendable to them in their Titles of Dukedoms Earldoms or Baronies or those whose Ancestors were summoned to Parliament for hereby also Inheritance doth accrew to their Posterities Noble women are also those who do take to their Husbands any Lord or Peer of the Realm although they themselves were not of any degree of Nobility Question and doubt hath been made Whether if a man be summoned to Parliament and afterwards die without Issue Male the Dignity and Title of Honour may descend to the Heir Female And many Arguments have been pro contra in that case which at this time I purposely omit because I have before discoursed thereof in the Chapter of Barons Concerning the Title of Honour descendable to the Heir Female by reason of a Tenure of her Ancestors there needs no more doubt to be made than of Offices of Honour the which do much support the publick wealth and being of Estate of Inheritance do descend to the Heir Female if there be no nearer Heir Male As the Office of High Constableship of England challenged in the time of Henry the Eighth by the Duke of Buckingham and adjudged by the Advise and Resolution of the Judges as by a note of that Case extant whereof Dyer in his Reports hath a memorial 205. b. Kelway the Sixth of Henry the Eighth 170. b. which descended to the Daughter of Humphrey de Bohune Earl of Hereford and Essex as before is declared The Office of the Lord Steward descended to Blaunch Daughter of Henry Earl of Lancaster in whose right Iohn of Gaunt her Husband enjoyed the same The like may be said of the Office of Earl-Marshal which descended by an Heir Female unto the House of Norfolk All which Offices are as unfit to be exercised by a Woman as for a Woman of Honour to be summoned to the Parliament And when a Title of Honour doth descend to a Woman if question in Law do arise between the said Noble woman and any other person whether she be of that Degree of Nobleness or no the Issue shall be tried by the Record thereof and by the King 's Writ it shall be certified and not by a Jury of twelve Men even as it should have been in case her Ancestor had been party Although the Laws of the Realm regularly do make all the Daughters where there are no Sons equally to inherit Lands and Tenements and to be but one Heir to their Ancestor yet it is not so in the descent of Dignity and Titles of Honour for Inheritances concerning matter of Honour being things in their nature participating 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 and inheritable where there is no Heirs Males that may lawfully challenge the same And so in this point is the Civil Law Nevertheless there was a Judgment in the time of Henry the Third touching the descent of the Earldom of Chester after the death of the Earl who died without Issue his Sisters being his Heirs which Judgment was That the said Earldom should be divided amongst the said Copartners as the other Lands and that the eldest should not have it alone But this Judgment was holden Erroneous even in those times wherein it was given For Bracton a Learned Judge who lived in that Age writeth thereof treating of partition between Copartners lib. 2. Case 24. by which it is evident That Baronies and Dignities of Honour do by the Laws of this Realm descend unto the eldest Copartner and the Judgment given once to the contrary thereof Bracton doth rightly account to be unjust His Reason is notable Forasmuch as the Honour of the Chivalry of this Realm doth chiefly consist in the Nobility Reason would not that such Dignity should be divided amongst Copartners whereby through multitude of partitions the reputation of Honour in such Succession and so divided might be impaired or the strenght of the Realm being drawn into many hands with decrease of livelyhood by such partition should be infeebled In which Resolution Britton the Learned Bishop of Hereford who compiled his Book of the Laws of this Realm by the Commandment and in the Name of Edward the First accordeth Britton 187. And therefore howsoever the Judgment was given or whensoever it is nevertheless very evident that it was soon redressed For if it were given upon the death of Ralph the last of that Name Earl of Chester who died about the Seventh of Henry the Third without Issue the Writers of that time do testifie that the Earldom of Chester came wholly unto Iohn Scott the Son of David Earl of Huntington and Auguish and Maud the eldest Sisters of the said Ralph if it were given upon the death of the said Iohn Scott who died about the Four and twentieth of Henry the Third without Issue yet notwithstanding the said Judgment stood in force for that the said King assumed the Earldom into his own Hands upon other satisfaction made to the said Sisters Copartners of the said Iohn Scottâ— Ne tanta haereditas inter colos deduceretur Matth. Paris Monaster Sancti Allane in Crompton fol. 366. b. Nevertheless you may read in this Treatise of
again into the Hall where he shall sit at Table with the Knights and being risen and retired into his Chamber his Attire is taken off and again clothed with a blew Robe having on his left Shoulder a Lace of white Silk hanging to be worn upon all his Garments from that day forwards till he have gained some Honour and Renown for some Feats of Arms or some Prince or Lady of Quality cut that Lace from his Shoulder After Dinner the Knights must come to the Knight and conduct him into the King's presence to return him thanks for these Honours and so takes his leave of the King and the Governours craving his pardon for any miscarriage and claiming their Fees according to the Custom of the Court also take their leaves of the Knight I shall conclude this Chapter with giving an Account of the Knights made at the Coronation of his Majesty Knights of the Bath made at the Coronation of his Majesty King CHARLES the Second EDward Lord Clinton now Earl of Lincoln Iohn Egerton Viscount Brackley eldest Son to the Earl of Bridgwater Sir Philip Herbert then second Son to the Earl of Pembroke Sir William Egerton second Son to the Earl of Bridgwater Sir Vere Fane second Son to the Earl of Westmoreland Sir Charles Berkley eldest Son to George Lord Berkley Sir Henry Bellasis eldest Son to the Lord Bellasis Sir Henry Hyde now Earl of Clarendon Sir Rowland Bellasis Brother to Viscount Faulconberg Sir Henry Capell Sir Iohn Vaughan now eldest Son to the Earl of Carbery Sir Charles Stanley Grandchild to the late Earl of Derby Sir Francis Fane Sir Henry Fane Grandchildren to the Earl of Westmoreland Sir William Portman Baronet Sir Richard Temple Baronet Sir William Ducy Baronet Sir Thomas Trevor Baronet Sir Iohn Scudamore Baronet Sir William Gardiner Baronet Sir Charles Cornwallis afterwards Lord Cornwallis Sir Iohn Nicholas Sir Iohn Monson Sir Bourcher VVray Sir Iohn Coventry Sir Edward Hungerford Sir Iohn Knevett Sir Philip Boteler Sir Adrian Scroop Sir Richard Knightley Sir Henry Heron. Sir Iohn Lewkenor Sir George Brown Sir William Tyrringhum Sir Francis Godolphin Sir Edward Baynton Sir Greville Verney Sir Edward Harley Sir Edward VValpool Sir Francis Popham Sir Edward VVise. Sir Christopher Calthrop Sir Richard Edgcombe Sir William Bromley Sir Thomas Bridges Sir Thomas Fanshaw Sir Iohn Denham Sir Nicholas Bacon Sir Iames Altham Sir Thomas VVendy Sir Iohn Bramston Sir George Freeman Sir Nicholas Slaning Sir Richard Ingoldsby Sir Iohn Rolle Sir Edward Heath Sir William Morley Sir Iohn Bennet Sir Hugh Smith Sir Simon Leech Sir Henry Chester Sir Robert Atkyns now one of the Justices of the Common Pleas. Sir Robert Gayre Sir Richard Powle Sir Hugh Ducy Sir Stephen Hales Sir Ralph Bash. Sir Thomas VVhitmore OF Knights Batchelors With what is incident to that Degree of KNIGHTHOOD According to the Laws of England CHAP. XXI THE particular kinds of Services by which Lands of Inheritance are distinguished are two viz. Knights of Service and Knights of Soccage And in ancient time Tenure by Knights Service was called Regale servitiâ—m because it was done to and for the King and Realm and forinsecum servitium as appeareth in the 19 Edw. 2. Avowry 224. 26. Ass. p. 66. 7. Hen. 4. 19. Coke's seventh Part 8. a. Calvin's case because they who hold by Escuage ought to do and perform their Services out of the Realm Litt. 35. ideo forinsecum dici potest sit quia capitur foris hujusmodi servitia persolvuntur ratione Tenementorum non Personarum And as knights-service-Knights-Service-Land requireth the service of the Tenant in Warfare and Battel abroad so Soccage-Tenure commandeth the attendance at the Plough the one by Manhood defending the King or his Lord's life and person the other by industry maintaining with Rents Corn and Victuals his Estate and Family For Kings did thus order their own Lands and Tenements one part they kept and detained in their own hands and in them stately Houses and Castles were erected and made for their habitations and defence of their Persons and of the Realm also Forests and Parks were there made for their Majesties Recreation One other part thereof was given to the Nobles and others of their Chivalry reserving Tenure by Knights Service The third part was bestowed upon men of meaner condition and quality with reservation of Soccage-Tenure And in this manner the Dukes and Nobles amongst their Menials and Followers dissipated a great part of their Lands viz. to their Gentlemen of quality to hold by Knights Service and to other of meaner condition by Soccage-Tenure The Right Honourable S. Ioseph Williams on of Milbeck hall in Cumberland Knight one of his Majestys principall Secretarys of State c a. The Honourable Sr. Robert Atkins of Totteridge in Hertford shire and of Sapperton in Glocester shire Knight of the Bath and one of his matys Iustices of the ComÌ„on pleas c a. Sr. Iohn Bennet of Dawly in Midd sx Kt. of the honble order of the Bath Leivtenant to his maties Band of Gentlemen Pentioners and eldest brother to the Rt. honble Henry Earle of Arlington who was first maried to Elizabeth Countess of Mulgrave daughter to the Earle of Midd sx and now to Bridget Howe of the Family of Sr. Grubham Howe Sr. Robert Southwell Knight one of the Clerkes attending his Majesty King Charles the Second in his most Honourable privy Councell câ—t Sr. Hugh Wyndham of Silton in Dorsetshire Kt. one of the Iustices of his matys Court of Comon pleas at Westminster eighth sonn of S. Iohn Wyndham of Orchard-Wyndham in Somersetshire Kt who was lineally descended from the antient Family of the Wyndhams of Felbrigg in Norfolk â—ownâ—r therâ—of Sr. Thomas Daniell of Beswick in the East Rideing of Yorkshire Kt. Major to his matys Regiment of Foot Guards and Captaine of his matys Archchiffe Fort in Dover Sr. Thomas Mompessonâ— antiently Montpintsonâ— of Bathampton in Wiltshire Knight a person of eminent Loyalty and suffering in the late trouble whose Family have been of greate antiquity in the said County Sr. Thomas Lynch of Great Sonkey in Lancashire Kt. one of the Gentlemen of his matyâ— privy Chamber in ordinary and late Governour of his Ma â—â—â— Island of Jamaica decended of the Lincâ—â—s of Groves in Kent and is now maried to Vere Herbert 2â— daughter of Sr. Edw Herbert sometyme Lord Keeper of the groâ—t seaâ—e Sr. William Pelham of Brocklesby in Lincolnshire Kt. whose Grandfatâ—er Sr. William Pelham of the said place Kt. who was descended of the antient family of the Pelhams of Langhtoniâ—â— sussex was employed under Queen Eliz in the offices of L d cheife Justice of Ireland Marshall of the English forces sentinto the Low Countrys Mastâ—â— of her ordnanceâ— and one of her privy Councell Sr Thomas Daviâ—s of the Citty of London Knight Ld. Maior thereof Anno 1677. Sr. William Prichard of the Citty of London Kt. and Alderman now maried to Sarah daughter of Francis
Domini sui ei conferet maritagium suum c. which words cannot be understood when he is out of Ward and Custody no more than when he is married after the Age of One and twenty years Note hereby that the King may prevent his Grantee or other Lords of the double value by Knighthood Yet in such case presently after the Heir is made a Knight after the death of his Ancestor the Lord may have a Writ de valore maritagii for the single Also by the ancient Common Law of this Realm if a Villain be made a Knight he is immediately infranchised And if a Ribald or a man of base birth and condition had struck a Knight by the ancient Law he should have lost his hand wherewith he offended But in France it was anciently adjudged that when the Lord of a Villain had Knighted his Villain being a Gentleman he became free and had his Honour lawâ—ully but if another Lord had Knighted him nothing had been wrought by it for none could manumit him but his Lord and till Manumission or Knighthood he had civil freedom for his ground but was not capable of it except by the King only It was enacted by Parliament in the sixth year of the Reign of King Iohn in haec verba Rex Vicecom c. Sciatis quod consensum est cum assensu Archiepiscoporum Comitum Baronum omnium fidelium nostrorum Angliae quod novem Milites per totam Angliam invenient decuriam Militum bene paratorum aequis armis ad defensionem Regni nostri There hath ever been and still is great use of the Services of Knights even in Civil Affairs and concerning matters of Justice as in a Writ of Right which is the highest Writ in Law for trial of Titles touching the Inheritance of Lands the Tenant is at his Election to have his Trial by great Assize or else by Battel if by the great Assize the Writ De magna Assiza eligenda shall be thus viz. Rex Vicecomiti salutem c. Summone as per bonos summonitores quatuor legales Milites de Comitatu tuo quod sint coram Iusticiariis nostris ad primam Assizam cum in partes illas venerint ad eligendum super sacramentum suum 12 de militibus de visum de N. qui melius sciant velint dicere veritatem adfaciendam recognitionem magnae assurae inter A. petent B. tenent de uno messuagio cum pertinentiis in N. unde idem B. qui tenens est posuit secum magnam Ass. nostram petit recognitionem fieri utrum eorum habent jus in messuagium praed B. qui tunc sit ibi auditurus illam electionem habeas ibi nomina praed milit ad hoc breve c. And upon the Return of this Writ those four Knights must appear gladiis cuncti Dier 79. fol. 103. If the Tenant make his Election by Battel each parties are to choose their Champions and the Court shall award the Battel and the Champions shall be at Mainprize and sworn to perform the Battel at a certain day in the Term and idem dies shall be given to the parties at which day and place a List shall be made in an even and plain Ground there quadrant that is to say every way sixty foot square and the Place or Court for the Justices of the Common Pleas without and upon the Lists furnished with the same Clothes which belong to their Court at Westminster and a Barr shall be there made for the Serjeants at Law and the Robes of the Justices and Serjeants shall be of Scarlet with their Coifs on as it was the Thirteenth of Eliz. and then was made Proclamation with three O Yes And the Demandant first was solemnly demanded and did not appear whereupon the Manuperors of the Champion were demanded to bring forth the Champion of the Demandant who came into the place apparelled with red Sandals upon his black Armour bare legged from the Knee downwards and bare headed and bare Arms to the Elbows being brought in by a Knight namely Sir Ierom Bowes who carried a red Battoon of an ell long tipped with horn and a Yeoman carrying the Target made of double Leather and they were brought in at the North side of the Lists and went about the sides of the Lists until they came to the midst of the Lists and then came towards the Barr before the Justices with three solemn Congies and there was he made to stand on the South side of the place being the right side of the Court And after that the other Champion was brought in in like manner at the South side of the Lists with like Congies by the hands of Sir Henry Chequie Kt. c. and was placed on the North side of the Barr and two Serjeants being of the Counsel of each part in the midst between them This done the Demandant was solemnly called again and appeared not but made default Bowham Serjeant for the Tenant prayed the Court to record the Nonsuit quod factum fuit And then Dyer Chief Justice reciting the Writ and Content and Issue joyned upon the Battel and the other of the Champions to perform it and the prefiction of this day and place did give final Judgment against the Demandant and that the Tenant should have the Land to him and to his Heirs for ever and the Demandant and his Pledges de prosequendo in misericordia Reginae And afterwards solemn Proclamation was made that the Champions and all others there present which were by estimation above Four thousand persons might depart every man in the peace of God and the Queen sic fecerunt cum magno clamore vivat Regina Also if false Judgment be given in the Country which is the Sheriffs Court then the Writ shall be thus Henricus c. Vicecomiti Lincoln salutem Si A. fecerit c. tum in pleno Comitatu tuo per breve nostrum de recto inter Iohannem L. petentem Will B. tenentem de uno messuagio centum acris terrae cum pertinentiis in C. unde idem I. L. queritur falsum sibi factum fuisse Iudicium in eodem Record illud habeas coram Iusticiariis Iuris apud Westminsterium tali die sub sigillo tuo per quatuor legales Milites ejusdem comitatus illos qui Recordo illi interfuerunt summoneas per bonos summonitores praedictum B. quod tunc sit ibi auditurus Recordum illud habeas ibi sua nomina quatuor militum hoc breve Fitz. Nat. Brev. itidem E. And those four must be Knights indeed Also the Justices upon consideration of the usual words in every Writ of Venire Facias Coram c. Duodecim tum Milites quam alios liberos legales homines c. say that these words tum Milites were not at the first put into the Writ without effect Plowden 117. b. For it seemeth that in diebus
illis some Knights were returned upon every Venire Facias By the Statute of Magna Charta cap. 12. It is ordained that Assizes of Novel Disseison and Mortdancester should not be taken any where but within the Countries where they happen by the Justices of Assize and the Knights of the Shire vide Westminster 2. chap. 30. And by the Seven and twentieth of Edward the First chap. 30. de finibus levandis amongst other things it is enacted That for the utility of the Realm and the more assured conservation of the Peace the Justices assigned to take Assizes in all Shires where they take Assizes as it is ordained immediately after the Assizes taken in the Shires shall remain both together if they be Lay and if one of them be a Clerk then one of the most discreet Knights of the Shire being associated unto him that is a Lay-man by our Writ shall deliver the Goals of the Shires as well within the Liberties as without of all manner of Prisoners after the form of the Goal Delivery of those Shires beâ—ore time used Also in the Statute of Westminster 21. cap. 38. de non ponendis in Assizis Iuratis it is provided that the said Statute shall not extend to Grand Assizes in which it behoveth many times Knights to pass not resident in the County for the scarcity of Knights so that they have Lands in the Shire And by the Law Knights having Land may be returned upon Juries in ordinary Trials between party and party as other Freeholders may be And therefore in a Challenge to the great Assize under Edward the Third one was challenged pur ceo qu'il fait abaner or as the Abridgment hath it a Baronet but it was not allowed and the Reason is given Car s'il soit à Baner ne tient pas per Baronie il serra en l'assise Of the double parity of England that is of Barons and all Dignities above them being Peers of the Realm and all other under them are Peers amongst themselves for notwithstanding that Dignity of Knighthood they are reckoned amongst the Commons And we daily see that Knights do serve in Parliament as Members of the Commonalty Nevertheless the Sheriff in his discretion will not impannel Knights but in special and great Causes As in Cases of Indictments of a Peer of the Realm they are to be enquired and found by Knights and Esquires though their Trial shall be only by their Peers And in 38 Hen. 8. Henry Howard Earl of Surrey Son and Heir apparent of Thomas Duke of Norfolk was attainted of High Treason and was tried also by Knights Esquires and Gentlemen and not by Lords or Peers of the Realm because he was not of that Dignity by Creation Since the use of making every Earl first a Baron of some place which began as most Writers treat about the time of Henry the Eighth it hath been a Custome to style their Heirs apparent Lords and Barons with the Title of their Father's Barony when Viscounts or Baron's Heirs apparent are only styled Esquires but this is only a piece of Civility and of meer fashion yet it is allowed of in Heraldry with whom the Rule is That the eldest Son of every one of a created Degree is as of the next Degree under him which may be applied to Dukes Earls and the like But in Legal Proceedings they enjoy no such matter nor have by their being Heirs Apparent any Prerogative of the greater Nobillty And in case where a Peer of the Realm is party Plaintiff or Defendant in any Action or Suit if the Sheriff do not return one Knight at the least to be of the Jury the said Noble Person may Challenge and for that only cause quash the whole pannel By the Statute of Carlisle 15 Edw. 2. it was enacted That he who levied a Fine should appear in proper person to the intent that his Age Idiocy or other defect might be discovered by the Judges Nevertheless upon Impotency whereby he cannot come in Court two or one of the Justices by the consent of the rest of the Justices shall go unto him and take his Recognizance and if but one of them go he shall take a Knight with him and shall certifie it in the Bench of Record to the intent that all things incident to the fine be examined by them and then the fine may be levied But after this good Statute a worse Custom and Use hath come in place For by a Dedimus potestatem out of Chancery to one Knight and to a Justice of the Peace of the County in such cases is procured and directed to a Knight and two others who perhaps be neither Knights nor Justices but perhaps men of small estimation and unto two or three of them without saying Quorum the Knight shall be one and two of them without the Knight have taken the Recognizance of the Fine ibid. 101. b. But great prejudice this practise of omitting the interposing of the usual Service of Knights in this behalf hath been to many and scandalous to the Law of the Land they sometimes taking Recognizances of a Fine from a Feme Covert as if she were sole and many times acknowledged by Justices If a Tenant do lay an Essoin de morbo lecti he may have a Writ out of the Chancery to warrant it by which it shall be commanded to four Knights to view him and if they see him sick then they are to give him day to the end of a year and a day Note the Register fol. 177. b. Quod Coronator non elegatur nisi sit miles in c. juxta formam Statuti Westm. 1. cap. 10. It is a received Opinion that Knights are excused from attendance at Leets and Britton 29. 36. is cited to prove it And by a large understanding of the intent and meaning of the Statute of Marlbridge chap. 10. For the ancient Common Law had such respect to the Degree of Knighthood that they nor their eldest Sons were compelled to find Pledges in the Leet or Law-days for the Statute of Marlbridge aforesaid was not Introductiva novae Legis for it was before the Conquest And the Common Law is not by this Statute abridged And by the Book called the Mirror of Iustice mentioned in the Preface to Coke's ninth part it is said that Knights are excepted And so it appears that the practice was as well before as immediately after the making of that Statute of Marlbridge and Interpretatio Practica is a principal way and form of Interpretation of Laws The Lord Chancellor's Speech in the Case of Postnati fol. 58. And in Divinity Praxis sanctorum est interpretatio praeceptorum ibid. 66. But a Knight and all Superiors and Inferiors are bound by Law to attend the County or Sheriffs Court wherein he dwelleth and at his peril to take notice of the proceedings thereof For if a Man be Outlawed of Felony at a County Court and one of the same County not