apparant of the King of England and of such a King who is heir unto the said Prince Edward And such a first begotten son and heir apparant to the Crown shall inherit the said Dukedom in the life of the said King his father with manner of limitation of estate was short excellent and curious varying from the ordinary Rules of the Common Law touching the framing of any estate of inheritance in fee-simple or fee-tail And neverthelesse by the authority of Parliament a speciall fee-simple iâ— in that onely case made as by judgment may appear in the Book aforesaid and the case thereof fol. 27. and 21 E. 3. 41. b. And ever since that creation the said Dukedom of Cornwall hath been the peculiar inheritance of the Kings eldest son ad supportandum nomen onus bonoris to support the name and weight of that his honourable estate during the king his fathers life so that he is ever Duxnatus non creatus a Duke born not created and the said Duke the very first day of his nativity is presumed and taken to be of full and perfect age so that he may sue that day for his livery of the said Dukedom and ought of right to obtain the same as well as if he had been full 21 yeers of age And the said Black-Prince was the first Duke in England after the Conquest for though Bracton who made his Book in H. 3. saith Et sunt sub regâ—duces as before appeareth yet that place is to be understood of the ancient kings who were before the conquest for in Mag. Charta which was made in Anno 9 H. 3. we finde not the name of Duke amongst the Peers and Nobles there mentioned For seeing the Norman Kings themselves were Dukes of Normandy for a great while they adorned none with this honour of Duke And the eldest son of every King after this creation was Duke of Cornwall and so allowed As for example Henry of Munmouth eldest son of H. 4. and Henry of Winsoâ— eldest son of H. 5. and Edw. of Westminster the first son of Ed. 4. and Arthur of Winchester first son of H. 7. and Edward of Hampton first son of H. 8. but Richard of Burdeaux who was the first son of the Black-Prince was not Duke of Cornwall by force of the said creation for albeit after the death of his father he was heir apparant to the Crown yet because he was not the first begotten son of a King of England for his father dyed in the life time of king Ed. 3. the said Richard was not within the limitation of the grant and creation by authority of Parliament made in the 11 yeer of king Edward above mentioned And therefore to supply that defect in the 5. yeer of Ed. 3. he was created Duke of Cornwall by a speciall Charter Elizabeth eldest daughter to king Edw. 4. was not Dutches of Cornwal for she was the first begotten daughter of king Edw. 4. but the limitation is to the first begotten son Henry the 8. was not in the life of his father king H. 7. after the death of his eldest Brother Arthur Duke of Cornwall by force of the said creation for albeit he was sole heir apparant to the king yet he was not his eldest begotten son Cooks 8 part 29. b. and 30. a. And the opinion of Stamford a learned Judge hath been that he shall have within his Dukedom of Cornwall the kings Prerogatives because it is not severed from the Crown after the form as it is given for none shall be inheritour thereof but the kings of the Realm For example whereas by the Common Law if a man hold divers Mannors or other lands and toâ—ements of severall Lords all by knights service some part by priority and ancient Feoffment and other lands by posterity and by a latter Feoffment and the Tenant so seized dyeth his son and heir within age In this case the custody of Wardship of the body and his marriage may not be divided among all the Lords but one of them onely shall have right unto it because the body of a man is intire and the Law doth say That the Lord of whom some part of those lands be holden by priority and by the same tenure of Chivalry shall have it except the king be any of the Lords for them though the Tenant did purchase that land last yet after his death the king shall bee preâ—erred before all or any other the Lords of whom the Tenant did hold by priority And so shall the Duke of Cornwall in the same case have the same Prerogative if his Tenant dye holding of him but by posterity of Feoffment for any tenure of his Dutchie of Cornwall although the said Duke is not seized of any particular estate whereof the reversion remaineth in the king for the Prince is seized in fee of his Dukedom as before is said Iohn of Gaunt the fourth son of king Edward 3. did take to wife Blanch who was daughter and heir to Henry Duke of Lancaster who had issue Henry afterwards king of England so that the said Dutchy of Lancaster did come unto the said Henry by discent from the part of his mother and being a subject he was to observe the Common Law of the Land in all things concerning his Dutchie For if he would depart in Fee with any part thereof hee must make livery and seizen or if hee had made a Lease for life reserving rent with a reentery for default of payment and the rent happen to be behind the Duke might not enter unlesse hee doe make a demand or if he had aliened any part thereof whilest he was with age hee might defeat the purchaser for that cause and if hee would grant a reversion of any estate for life or yeares in being there must also be Attornment or else the grant doth not take effect But after that hee had deposed King Richard the second and had assumed upon him the Royall estate and so had conjoyned his naturall bodie in the bodie Politique of the King of this Realme and so was become King Then the possessions of the Duchie of Lancaster were in him as King and not as Duke For the name of Duke being not so great as the name of a King was drowned by the name of King and by the State Royall in him who was Duke for the King cannot bee a Duke within his owne Realme but out of his Realme hee may And likewise the name of the Duchie and all the Franchizes Liberties and Jurisdictions of the same when they were in the hands of him who had the Crowne and Jurisdiction Royall were gone by thâ— Common Law and extinct for the greater doth distinguish the lesse and after those times the possessions of the Dutchie of LANCASTER would not passe from King Henry the fourth but by his Letters Patents under the great Seal of England without livery of seifin and without Attornment and if he make a Lease for life being Duke
answere to be made to these objections being of all others the most materiall and of moment used in this behalf it shall be convenient for the more easie unfolding the state of this question to exhibite certain necessary and requisite propositions and upon them to draw true and infallible conclusions and then to prove them by authority of Law consent and time and manifold presidents which done the answere will be easily made as I conceive to every of the foresaid objections First therefore if a Baron by tenure which holdeth any Castle Honour or Mannour per Baroniam do alien or give the same either he doth it without any licence obtained from his Majesty so to do or else by some certain licence in that behalf obtained If he doe it without licence then the conclusion is certain by the lawes of this Realme the Barony Castle Honour and Mannour so aliened without licence or consent is forfeited and the same Honour Castle or Mannour so holden by Barony and so aliened is to be seised into the Kings hands for the said forfeiture and such dignity and estate no longer to be borne and continue but to be resumed and extinguished in the Crowne from whence it was derived Read hereof in Stamfords Prerogative cap. 7. But nota in Cook 2. part 80. b. The reason thereof is notable if we call to remembrance that which was formerly alledged out of Bracton That Baronies are the strength of the Realme and suffer no division they suffer also no alienation without the consent or licence of the soveraign Monarch for so should the Realme be enfeebled and base persons enabled without desert of vertue or prowesse For where the thing so aliened is an Honour or head of the Barony it differs much from the ordinary tenure in capite whereof if the Tenant make alienation without licence hee is onely to pay fine by the statute 1. E. 3. cap. 12. whereof also before the making of the statute there was diversity of opinion at the Common Law after the statute of Magna Charta But let me cite some authorities for the proofe of these allegations Glanvile the most ancient Writer of the Lawes of this Realme now extant hath these words Notandum autem quòd nec Episcopus nec Abbas quia eorum Baroniae sunt de eleemosyna Regis Antecessoris ejus non possunt de Dominicis suis aliquam partem dare ad remanentiam sine assensu confirmatione Domini Regis lib. 7. cap. 1. in fine statut Westm. cap. 42. In Edward the thirds time certaine land being parcell of the Barony of Brember was aliened by William de Bruse the Baron thereof without licence of the King and in the argument of a cause concerning the same Greene one of the Judges delivereth this for law That parcell of a Barony or Earldome held of the King in chiefe cannot be aliened or dismembred without his licence and if it be it shall bee seised into the Kings hands as forfeit and the King shall be seised thereof in his own right again In 46. E. 3. it was found by office that William Bishop of Chester had leased unto one John Peston for his life a Mannour which was parcell of the Mannour of the said Bishopricke without licence and it was resolved by the Judges and other of the Kings Councell that the same was forfeit but by meditation of the said Councell the Bishop submitted himselfe to the King and made a fine and severall Scire facias issued out against them that had received the maine profits to answer unto the King thereof And thus much concerning alienation of Baronies without licence But on the other part if a Baron by tenure which holdeth any Honour Castle or Mannour by Barony do grant or alien the same by licence I must again distinguish For either such alienation is made for the continuance of his Barony Honours Lands and Tenements in his owne name blood issue male Or else the same alienation is made for mony or other recompence or otherwise to a meere stranger and hereof ensueth this second conclusion or assertion That if such alienation be made for the continuance of the Barony in his name and blood or issue male as many have made the like then have the issues male together with the Barony be it Castle Honour or Mannour so holden held also and lawfully enjoyed the name stile title and dignity of a Baron and thereof have the heires generall or next heires female been excluded and debarred And for the proof of this assertion there may manifold presidents be produced wherof certain have happened almost in every age for 300 yeers space namely so long in effect as there have bin observations thereof of which some certain doe ensue William de Ferrariis Comes Derby obiit Anno 30. H. 3 Margareta Comitissa Derby Domina de Grooby Robertus de Ferrariìs Comes Derby Johannes de Ferariis Dom. de Charley Will. de Ferrar. Dom de Grooby ex dono Matris William de Ferrariis Dominus de Grooby It appeareth by an office found after the death of William de Ferrariis Lord of Grooby 23. H. 6. that Margaret Lady of Grooby gave to William Ferrars her second sonne and to the heires of his body the Mannour of Grooby c. By vertue of which gift the said William Ferrars and his heires were ever after Barons of Grooby Robert Walleron Baron of Kilpeck died in 1. Ed. 1. without heires of his body and Robert Walleron sonne of William brother of the said Robert was his next heire yet notwithstanding the said Robert dâ—ing gave to Allen Plagenet sonne of Alice his sister the Castle Mannour and Lordship of Kilpeck with the appurtenances To have unto the said Allen and to the heires of his body comming as appeareth by his office c. By vertue of which gift the said Allen was Baron of Kilpeck and summoned among other Barons to the Parliament and he died 27. E. 1. Walleron Baron of Kilpecke Robert Walleron Baron of Kilpec obiit sine exitu 5. E. 1 William Walleron Robert Walleron the next heir Alice married to Plagenet Allen Plagenet Baron of Kilpecke coron dono Edmond Deynecourt Baron of Blasteny obiit An. 20. E. 2 Edmond DeynCourt Isabel his next heire John Deincourt William Deyncourt BaroÌ„ of Blaxronry by reason of the entaile obiit 38. E. 3 William Deyncourt ante patrem William Deyncourt Baron of Blackney John Deincourt The King to all Christian people sendeth greeting c. Know ye that whereas lately for that our well-beloved and faithfull subject Edmond Deyncourt pondered and considered that both his Sirname and also his Armes after his death in the person of Isabell daughter of Edmond Deyncourt his heire apparent should be blotted out of memory most earnestly he desired that his Sirname and Armes after his death for ever might be had in remembrance To whose request for the worthy service as well to our father Edward late
Kt Iohn de Vere Iohn de vere Earle of Oxford by vertue of the entaile Iohn de Vere William Lord Pagâ—t of Bewdesert was seised in his demesn as of fee of the Baronies of Langden and Hawood and of and in the Mannours of Bewdesert Landen c. And being so seised by fine quinto Mariae entailed the Baronies and Mannours aforesaid to him and his heires males of his body issuing And afterward Anno 5. Eliz. died leaving Henry his sonne next heire male Which Henry entred into the Baronies and land aforesaid by vertue of the foresaid fine and died thereof seised 11. Eliz. leaving Elizabeth his onely daughter and heire After whose death Thomas Paget brother and heire male of the said Henry entred into the Baronies and Mannours aforesaid and was summoned to the Parliament by virtue of the aforesaid fine William Lord Paget of Bewdesert died anno 5. Eliz. Henry Lord Paget dies An. 11. Eliz. Elizabeth his daughter and heire Thomas Lord Paget by force of the entaile after the death of his brother Robert Lord Ogle entred into the Barony of Bothal and Ogle with divers other Mannors and Lands in the County of Northumberland by conveiance which was to himselfe for terme of his life the remainder to the heires males of his body begotten and he took to his wife Dorothy Witherington by whom he had issue Robert Ogle his eldest sonne and Margery his daughter married Gregory Ogle of Chippington And the said Robert the father after the death of the said Dorothy his wife took to his second wife Ioane Ratcliffe by whom he had issue Cutbert his second sonne and after died After whose death Robert the sonne was Lord Ogle from whom the same descended to Cutbert being brother of the halfe blood by vertue of the said entaile and not to the said Margery nor unto her heires being of the whole blood unto the said Robert the sonne Robert Ogle Lord Ogle Dorothy daughter of Henry Withrington first wife Robert Ogle L. Ogle died without issue Margery maried to Ogle of Chippington Cuthbert Ogle of Chippington Joan the daughter of Cuthbert Ratcliff Kni. the second wife Cuthbert Ogle L. Ogle died Margery Ogle married Robert Witherington Thomas Ogle Moreover concerning the second objection it is very â—rue that many ancient Mannours which were anciently holden by Barony as the head or parcell of a Barony are now in the hands of Gentlemen meane and un-noble by blood who neither doe nor may claime any Nobility or honour thereby But the reason that some former gifts made by the Kings Majesties progenitouâ—s the supreme Soveraignes of this Realme to such as they honoured in augmentation and support of their honour and by honourable services should thus come to the hands of mean personages are twofold First for that such Mannours have been alieued by licence unto such persons before spoken whom such possessions alone cannot make noble Secondly and that was usually such Mannours as were holden by Barony have upon divers eâ—cheasons and occasions come to the Crowne by way of revertor or eschete or forfeit by meanes whereof the ancient tenures derived from the Crowne by reason of those lands so comming again to the Crown were extinct and after the said lands were given or conveyed to others reserving other services than those which at the first were due for the same so that it was no marvaile to see that some Mannours anciently holden by Barony or other honourable service should now bee holden in soccage or by other triviall or meane tenure As to that which was thirdly objected that some ancient Barons there are which have aliened and sold away those Castles and Mannours of the which they have and doe beare the name and dignity and yet neverthelesse themselves doe still retaine and keep lawfully their estate dignity and degree of a Barâ—â— and have been and are called to the Parliament such alienation notwithstanding To this I answer That it is true but it proveth nothing against the former resolution And therefore for better satisfaction of this observation it is to be considered that such Barons either be originally Barons by writ or Barons by tenure Barons by writ in this respect now in hand are of two kindes For either in such writ whereby they or their Ancestors were at first summoned they were named onely by their owne names or else there was addition given them of the principall place of their aboad which was done either for distinction sake to sever them from some honourable person of the same surname or else to give them such honourable title by addition of the place which place notwithstanding was not holden by Barony And therefore if such a Baron doe alien away that place which anciently was his seat he may neverthelesse retain his honourable title in respect had of such a place But if a Baron by tenure doe alien away the honourarable Castle or Mannour holden by Barony unto a mean person not capable of honour and that by sufficient licence so to doe and after the alienour which made such alienation be called by writ to the Parliament under the title or as Baron of such Honour Castle or Mannour so aliened he is not any more a Baron by tenure in respect of that place for that he hath aliened that away which he held by Barony but thenceforth after such writ of summons he is become a Baron by writ and may retaine the name of Baron by title of the place as Baron by writ such alienation notwithstanding forasmuch as the writ directed at the pleasure of the Prince doth give unto him that addition of name and dignity And thus much touching the resolution of the said question and satisfaction of the said objections and of Barons by tenure BARONS by writ which is the second kind of Barons mentioned in the former Divisions of BARONS A Baron by writ is he unto whom a writ of summons in the name of the King is directed to come to the Parliament appoinâ—ed at a certaine time and place to be holden and there with his Highnesse the Prelates Nobility and Peeres to treat and advise touching the waighty affairs of the Realme Tâ—e forme of which writ is much to the effect of the writ before mentioned in the title of Earle which kind of writ is as well directed to the Barons by tenure as Baâ—â—â—â— by creation Patent or otherwise But those which 〈◊〉 Barons by tenure nor by Patent and have onely 〈◊〉 writs are therefore called Barons by writ and upâ—◠〈◊〉 of such writ and place taken accordingly in 〈◊〉 ought to enjoy the name dignity and hoâ—â— of a Baron 〈◊〉 â—ouching the antiquity of Barons by writ onely and â—â—eir first institution I finde little or no mention before â—he time of H. 3. And therefore I conceive that either the first of all or at least that the first frequent use of such Barons was had and devised 49. H. 3. in case of necessity and upon a lamentable
is no accepter of persons for as unto the Lord he that is greater is as the lesser and he that doth govern as the servant but with men there is a difference of persons viz. The King and under him Dukes Counts Barons Vavasors and Knights Counts so called because they take their name from the County or from the word society who may also be tearmed Consull of Counselling For Kings do associate such men unto them to govern the people of God ordaining them into great honour power and name when they do gird them with swords that is to say ringis gladiorum with the Belts of their swords ringis so called * quasi renes girans circundans for that they compasse the Reins of such that they may keep them from incest and luxury because luxurious and incestuous persons are abominable unto God upon this cause were the stations and encamping of Arms called in the ancient language of Rome casâ—â—â— even of the word Castrare to geld since that they ought to be castrata vel castra In that place ought a good Generall to foresee that Venus delights be as it were gâ—lded and 〈◊〉 off from the Army vide Sir John Ferne his Book intituled The glory of generosity The sword also doth signifie the defence of the Kingdome and Countrey There be other Potents under the King which are called Barons that is to say robor belli the strength of Warre There be others which are called Vavasors viri magnâ— dignitatis â—en of great dignity for Vavasor cannot better be said to be any thing than Vas sortitum ad valetudinem a vessel chosen for valour or as men standing with their Generall ad valuas Regni and this is enough if not too much in generall spoken of the Nobility of England now follow I a more particular discourse of them according to their severall degrees The Prince THe Kings eldest Sonne and Heir apparant is stiled Prince Quasi primum locum capiens post Regem the first next the King To him it was permitted by the Statute of 24. Hen. 8. cap. 13. To wear Silk of the colour of Purple and Cloth of Gold of Tissue in his apparell or upon his horse but by another Statute made in the fourth yeer of King James Chap. 25. all Laws and Statutes concerning apparell are taken away And by the Statute of 34. Hen. 3. cap. 2. Taking shall not be from henceforth made by others then by the Purveyors of the King of the Queen and of the Prince their eldest Sonne and that if any other mans Purveyor make such taking it shall be done of them as those which do without warrant and the deed judged as a thing done against the peace and the Law of the Land and such as do not in manner aforesaid shall be duly punished To eschew maintenance and nourish peace and amity in all parts of the Realm many Statutes have been made in the Raign of Hen. 4. prohibiting the giving of signes or Liveries to any but to their menialls Neverthelesse by the Statute of 2. Hen. 4. cap. 21. It is provided that the Prince may give his honourable Liveries of signes to the Lords or to his meniall Gentlemen and that the said Lords may wear the same as they wear the Kings Livery and that the menialls of the Prince may also wear the same as the Kings menialls But afterwards by occasion of divers other Statutes of latter times made by sundry other Kings for the suppressing of that enormity of maintenance and of the generall words in them that priviledge of the Prince was abridged or rather taken away therefore the Statute of 12. Ed. 4. was made as followeth Item Our Soveraign Lord the King considering that the Prince the first begotten Sonne to the King of England hath been at their liberties to give their Liveries and signes at their pleasure and that divers Statutes against givers and takers of Liveries and signes as well in the time of his noble raign as in the time of his progenitors and predecessors hath been made and that by force of the said Statutes his dear beloved first begotten sonne Edward Prince of Wales Duke of Cornwall and Earl of Chester is as well as any other person restrained to give any such Liveries and signes as our Soveraign Lord the King willing that his first begotten sonne the Prince be at his liberty in receiving any person and giving his signes and Liveries in as large form as any Prince first begotten sonne of any of his Noble Progenitors and predecessors in time pasâ— have been hath ordained and established by authority of the said Parliament that the Prince shall be at his liberty to retain and give his honourable Livery and signe at his pleasure and that the persons so â—â—â—â—ined or to whom such Liveries or signes be or shall be given may be retained and received and wear the same Livery and sign without trouble impediment or impeachment pain contempt or forfeiture or any penalty contained in any of the said Statutes or in any thing in them comprised notwithstanding Nor that the said Statutes in any manner shall extend to any retaining to be made by the said Prince in giving taking or retaining of any Livery or signe of the Prince By the Statute 21. Hen. 8. cap 13. The Prince may retain as many Chaplains as he will though all others of the Nobility other then those of the Kings bloud be restrained to a certain number and they or any of them may purchase licence or dispensation and take receive and keep personages or benefices with cure of souls By order of the common Law a King might have a reasonable ayde of all his Tenents as well of those that did hold of his highnesse by Knights service as of those that did hold their Land in soccage That is to make his eldest Sonne But first note that the ayde is not to be recovered before the Sonne be of the age of 15. yeers or before the Daughter accomplish the age of 7. yeers Fitz Harbert Nat. brevium Knight and for the Marriage of his eldest Daughter and the summe of money was not in certainty but at the Kings pleasure till by the Statute made in the 25. of Ed. 3. cap. 11. by which is enacted as followeth Item It is assented that reasonable aid to make the Kings first Sonne Knight and to marry his eldest Daughter shall be demanded and levied after the forme of the Stature thereof made and not in other manner that is to say of every Knights Fee holden of the King without mean rate 20s and no more and of every 20â— of Land holden of the King without mean in soccagâ— 20s and no more and so rata pro rata of the Lands in soccage And for Lands of the â—enure of Chevalry according to the quantity of the Fee By another Statute made in the said 25. yeer of Ed. 3. cap. 2. amongst other things it is declared that to compasse
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
King of England as also to our selfe by our Letters Patents doe grant and give licence for us and our heires so much as in us lyeth to the said Edmond to dispose and give all his Manours Lands Tenements and Knights fees with their appurtenances and Advowsons of Churches Abbies and Priories and Hospitalls which he holdeth of us in chiefe to whom he pleaseth To have and to hold to him and his heires for us and our heires by the service thereof for ever By which Grant the said Edmond gave all his Lands and Tenements to one William sonne of John Deyncourt and to his heires of his body comming And the said Edmond dyed the last yeere of Edward the second and the said William in the time of Edward the third was summoned among other Barons to the Parliament by vertue of the same gift untill his death which was Anno 3. E. 3. It appeareth by divers offices in the time of King Edward the third that John Handlow in the right of Maud his wife was seized of the Mannour of Holgate Acton Burnell c. for terme of her life remainder to Nicolas Handlow alias Burnell sonne to the said Maud and John by a fine in the Court levied and that John Lovell was next heire of the said Maud and her first-borne sonne by her first husband and afterwards the said Nicolas was summoned among other Lords to the Parliament by reason of the fine aforesaid and not the said John Lovel who was next heire Edward Burnell Baron of Holgate Philip Burnell Baron of Holgate Maud Burnell heire to her brother John Lovell the first husband John Lord Lovell Iohn Lord Lovell John Handlow second husband Nicolas Handlow Baron of Holgate Hugh Handlow alias Burnell Baron of Holgate Thomas de Beauchamp the elder Earle of Warwick by a fine levied 18. E. 3. entailed the Mannour and Castle of Warwicke with divers other possessions to himselfe for terme of his life the remainder whereof to Guy his eldest sonne and to the heires males of his body issuing for want of such heires the remainder to come to Thomes Beauchamp brother to the foresaid Guy and to his heires males of his body issuing c. And afterwards the said Gâ—y died without heires male of his body leaving two daughters and heires living afterward the said Earle dyed and the said Thomas the sonne entred into the Castle and Mannour aforesaid with other the premisses and was Earle of Warwick by reason of the entaile aforesaid notwithstanding that Katharine daughter of Guy and next heire to the said Thomas the elder was living 30. yeers after his death Thomas Beauchampe Earl of Warwick Guy de Beauchampe first son obiit ante patrem 30. E. 3 Katharine lived in 21. R. 2 Elizabeth Tho. de Beauchampe Earle of Warwicke by reason of the entail obiit anno 1. H. 4 Rich. Beauchamp Earl of Warwick obiit 17. H. 6 William Beauchamp de Beauchamp L. of Aberganey obiit 12. H. 4 Richard de Beauchamp Earl of Warwicke obiit 9. H. 5 Richard Earle of Arundell by a fine 21. E. 3. entailed the Castle Towne and Mannor of Arundell with other Lands to him and to his heires Males begotten of the body of Ellenor his wife By vertue of which entaile John Lord Matrovers Earle of Arundell after the decease of Thomas then Earle which died without heire Male although the sisters of the said Thomas possessed divers Lands and honors of the which the said Thomas died seised in Fee simple was Earle of Arundell Richard Earle of Arundell Richard Earle of Arundell obiit anno 21. R. 2 Thomas Earle of Arundell obiit anno 3. H. 5 Elizabeth married to Tho. Mowbray Duke Norfolk Jane Lady of Abergany Married to Lewthall John Arundell Knight Lord Matrovers John Arund Lord Matrovers obiit 6. H. 4 Io. Arund L. Matrovers obiit 9. H. 5 Io. E of Arun. by reason of the entail Thomas Lord Barkley was seised in his demesne as of fee of the Castle of Barkley and Mannour c. and a fine levied in the Kings Court 23 E. 3. of the aforesaid Castle Mannour c. to him for terme of his life remainder to Morrice his sonne and to the heires males of his body issuing with other remainders as aforesaid the which said Morrice had issue Thomas Lord Barkley and Iames Barkley Knight which Iames dyed in the life of his brother leaving Iames his sonne and heire living After the said Thomas Lord Barkley died Anno 5. H. 5. leaving Elizabeth his daughter and heir married to Richard Earle of Warwick after whose death Iames his Nephew on the brothers side entred into the Lands Castles and rem ' aforesaid by virtue of the entaile and was summoned among the Barons to the Parliament as Baron of Barkley 9. H. 5. which Elizabeth died in 1. H. 6. Tho. Lord Barkley Morrice Lo Barkley Tho. Lord Barkley Eliz. married to Rich. Earle of Warwick Sir Ia. Barkley died before his brother Iames Lo. Barkley by reason of the entaile Thomas Lord De la ware died seised in his demesne as of fee taile to himselfe and to the heires males of his body issuing by reason of a fine levied in the time of his ancestors of the Barony De la ware with divers other lands in other counties and died 5. H. 6. without heires of his body and Reignold West Knight of the halfe blood was next heire by reason of the entaile aforesaid and was summoned to the Parliament by the name of Reignold Lord De la ware Knight although Iohn Griffith was heire generall of the aforesaid Thomas De la ware being of the whole blood as appeareth by the genealogie ensuing Iohn Lord Delaware son of Roger. Iohn Lord Delaware Roger Lord Delaware Elisabeth daughter to Adam L. Wels. Iohn Lord De la ware died without issue Thomas Lord Dela ware died without issue Elisabeth daughter to the Lord Mowbray hâ—s second wife Iohn Griffin heire generall to the Lord Delaware Sir Reignold West Lord De la ware by the entail Katharine married to Nicolas Latimer Katharine married to Griffin Iohan married to Tho West Knight John de Vere Earle of Oxford seised in his demesne as of Fee taile to him and his heires Males of his body issuing of the honour and county of Oxford with divers other Lands Anno 18. H. 8. died without heires of his body and his three sisters were his next heires generall but Iohn de Vere his next heire Male as appeareth was Earle of Oxford by reason of the said entaile and none of the three sisters obtained Dignity Richard de Vere Earle of Oxford died 4. H. 5. Iohn de Vere Earle of Oxford deed 1. E. 4. John de Vere Earle of Oxford died without issue 4. H. 8. George de vere Knight Iohn de Vere Earl of Oxfo died without issue 18. H. 8. Eliz. married to Sir Antho. Wingfield Knight Ursula married to Edm. Knightley Esq Dorothy married to Nevill Sir Robert de Vere
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
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
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
for the same Reason in the Queene being his wife Plouden 23. 1. a. Coâ—kes 8. Repl. 28. A man seised of divers Lands in Fee holden by Knights service some by Prioritie that is by ancient Feofment holden of others and some other parts holden by the same tenure of the King by posteritie the King granteth his Seigniory to the Queene and afterwards the Tenant dyeth the sonne within age in this case the King shall have the Wardship of the Body and have the Prerogative even as the King himselfe should have had 3. E. 3 4. vide etiam Stamford Prerog Reg. cap. 2. The Queene wife unto the King or widdow shall not be amerced if she be non-suited in any Action or otherwise in which cases any other subject of what degree soever shall be amerced for in this case the Queen shall participate the Kings Prerogative Cookes 6. Report 62. But the Queene shall not in all cases have the same Prerogatives that the King shall have in the same case as for Example Petition is all the remedy the Subject hath when the King seizeth his Lands or taketh away his Goods from him having no title by order of Law so to doe contrary to the opinion of some ancient Bookes as you may see Stamfords Prerog cap. 19. But in such suit shall be made to the Queene but actions against other Leiges of the King according as the case shall require for by the same reason that the Queene may be Plaintiffe and Demandant in actions without the King by the same reason that the Queene may be Plaintiffe and Demandant in actions without the King by the same reason he shall be Defendant or Tenant without pertaking such Prerogatives as doe appertaine to the King 11. H. 4. 64. B. Stamford Prerog cap. 22. in fine Against the King by his Prerogative Nullum tempus occurit Regi but time shall runne against the Queen H. 18. E. 3. 2. a. and aplenarty by sixe mouthes is a good plea in a Quare Imp. brought by Philippa Regina Angliae ibid. fol. 1. et 13. b. Stamford Prerog cap. 18. prope finem In 21. E. 3. 13. b. It is thus to be read note that a protection was sued forth against the Queen in a Writ which she brought and it was allowed though shee be a person exempt Neverthelesse by this short case following may bee observed that the Justices doe not easily suffer any proceedings in Law against the Queene wife or widdow but will hold with their Inmities as much as they may by Law A Writ of dower was brought against Isabel Queene of England mother of the King that then was and the Couâ—t said to the Plaintiffe the Queene is a person of dignitie and excellencie and we are of opinion that she shall not answer to the Writ but it behooveth you to sue to her by Petition and thereupon the Demandant dixit grat and shee prayed the Court to grant a continuance of her Action untill another day so that in the meane time she might sue to speake with the Queen but the Court would not agree to make a Continuanâ—e but said that upon her request they might give day precepart and so it was done for the Queenes Couneell would not agree to a continuance for thereby the Queene should bee accepted as answerable 10. E. 3. 379. The wife of the Kings eldest sonne also hath some Prerogative in regard of the excellencie of her Husband which the wives of other Noblemen have not for by the Statute of 25. E. 3. it is high Treason to violate the wife of the Kings eldest sonne and heire Dutchesses also and Countesses have speciall Honour appertaining to their Estates as kneeling and tasting and such like which things as appertaining more properly to the Heraulds then to this legall discourse I leave unto them By the Statute made 7. Iac. cap. 6. intituled An Act for the Administring the oath of Allegiance and Reformation of Women recusants if any person or persons of or above the age of 18. yeeres and degrees aforesaid must and hereafter shal stand and be presented indicted or convicted for not comming to Church or not receiving the holy Communion or Sacraments of the Lords Supper according to the Lawes and Statutes of this Realme before the Ordinary or other having lawfull power to take such presentment or indictment then 3. of the Privie Counsell of the King his Highnesse his Heires or Successours and no other whereof the Lord Treasurer the Lord Chancellour Lord Privie Seale or principall Secretary to be one upon knowledge shall require such person or persons to take the said Oath but it shall be lawfull to and for every Bishop within his Diocesse to require any Baron or Barons of the age of 18. or above to take the said Oath Also in cases of indictment of Felony or Treason a Baronesse shall have the same tryall by Peeres as doth appeare by the Statute of 20. H. 6. cap. 9. which any other Noble woman of higher degree shall have which priviledge is denyed to all of a lower degree then a Baronesse Ladies in Reputation The wife and widdow and widdow of the sonne and heire of a Duke or Earle in the life of his Father is a Lady by courtesie of speech and honour and taketh place according as in ancient time hath been permitted by the Soveraign Prince and allowance of the Herauld but in legall proceedings they are not to have priviledges nor to be named according to such sirnames of dignity but the King may at his pleasure create such men in the life time of their Ancestors into degrees of Lords of his Parliament and then the Law is otherwise If a Noblewoman of Spaine come into the Realme by safe conduct or otherwise by the King shee be stiled by such her forraign stile of dignity yet in the Kings Courts of Justice she shall not be named by such title though by common speech she be a Lady in reputation An English woman borne doth take to her Husband a Spanish or French Duke though he be made a Denizen yet he shall not beare his title of dignity in legall proceedings A German woman is married to the Earl of Northam or to other the Nobility of England unlesse she be made a Denizen she cannot lawfully claim the priviledges or title of her husband no more then she can to have dower or any jointure from him An English Woman doth take to Husband the Earle of Kildare in Ireland or if a Lord of Scotland though he be a post natus take an English woman to his wife their wives shall not participate their husbands Titles of Dignitie But if the King do create one of his Subjects of Scotland naturalized here by Act of Parliament to be Viscount Rochester within England and after by his Writ of Summons under his Great Seale doe call him to his uper House of his Parliaments and assigne him a place there in his great Councell amongst the Lords and Peeres of
the Realme hee is now also a Peere of this Realme and shall be partaker with them in all Priviledges and by consequence his wife widdow and children after him 32. E. 3. 35. in le case de Gilbert Humfrevill But if an Englishman by the Emperour be made Earle of the Empire his wife shall not beare that title of Honour either according to Law or in Reputation All the Daughters of Dukes Marquesses and Earles are by custome of long time used in the Kings Houses or palace named Ladies and have precedencie and place according to the degrees of their parents and so of this custome the Law doth take notice and give allowance for the honour and decencie but neverthelesse in the the Kings Courts of Justice they beare not these titles of Honour no more then the sonnes of such Noble person may doe brothers to such Ladies Finis Nob. litatis A TREATISE OF KNIGHTS AND Matters incident to the Degree of Knighthood according to the Lawes of England THE particular kinde of services by which lands of Inheritance are distinguished be two viz. Knight service and socage vide Littletons Soccage c. 26. In ncient time Tenure by Knights service was called Regale Servitium Cooke in his Preface to his 3. Book fol. 3 a. because it was done to and for the King and the Realme and formi secum servitium as appeareth in Anno 19. Edw. 2. Title Avowry 224. 26. ass p. 66. 17. H. 4. 19. Cookes 7. part 8. a. Calvins case because they which doe hold by soccage ought to doe and performe their services out of the Realme Littleton 35. Et ideo formi secum dicipoterit quia sita capitur foris Hum. Servitiam persolvuntur ratione tenementarum non personarum Bracton fol. 36. And as Knights service land requireth the service of the tenement in warfare and battell abroad so Soccage tenure commandeth his-attendance at the plough the one by manhood defending the King or his Lords life and person the other by industry maintaining with rents corne and victuals his estate and family See Lambert Customes of Kent fol. 389. For they did thus order their owne lands and tenements one part they kept and detained in their owne hands and in them stately houses and Castles were erected and made for their habitation and defence of their persons and the Realme also Forrests and Parkes were made there for their pleasures Solace and Delight One other part hereof was given to the Nobles and others of their Chivalty reserving tenure by Knights service The third part was bestowed upon men of meaner condition and quallity with reservation of soccage tenure and in this manner the Dukes and other the Nobles with their menialls and followers dissipate to a great part of their lands viz. to their Gentlemen of quality to hold by Knights service and to others of meaner condition by Soccage tenure Gervasius Tilburiensis a learned man who flourished in the dayes of King Hen. 2. in his Dialogue of the observation of the Kings Exchequer hath in effect as followeth Untill the time saith he of King Hen. 1. the King used not to receive money of their lands but victuals for the provision of their house and towards the payment of their Souldiers wages and such like charges Mony was raised out of the Cities and Castles in which Husbandry and Tillage was not used and exercised But at length when the King being in the parts beyond the Seas needed ready money for and towards the Furniture of the warres and his Subjects and Farmers complained that they were grievously troubled by carriage of Victuals into sundry parts of the Realme farre distant from their dwelling houses the King directed Commissions ro certaine discreet persons who having a regard of those Victuals should reduce them into reasonable summes of Money the leavying of which summes they appointed to the Sheriffe taking order withall that he should pay them at the scale or beame that is to say That hee should pay sixe pence over and above every pound weight of money because that they thought that the money in time would waxe so much the worse for the wearing Cambdens Perambulation of Kent fol. 172 173. Vide Littleton libro 2. fol. 26. Note also Gervasius Tilburiensis who lived Anno 11 60. Anno 6. Hen. 2. And Cambden fol. 178. It was anciently ordained that all Knights Fees should come unto the eldest Sonne by succession of Heretage whereby hee succeeding his Ancestours in his whole Inheritance might bee the better enabled to maintaine the warres against the Kings Enemies or his Lords And that the Soccage Fee should be partable betweene the Male Children to enable them to encrease into many Families for the better furtherance in and increase of Husbandry See Cookes Preface to the Reader in his Ninth Booke Fol. 2. 6. But as nothing is more unconstant then the estate we have in Land and livings if at least I may call that an estate which never standeth even so long since These tenures have been so indifferently mixed and confounded in the hands of each sort that there is not now any note of difference to be gathered by them See Lamberts perambulation of Kent fol. 10. Et quia tale servitium formi secum non semper manet sub eadem quantitate sed quandoque praefat ad plus quandoque ad mâ—nus Ideo qualitate Regalis Sencitii quantitate fiat mentio in charta ut tenens vectu tenere possit quid quantum persolvere tentatur Bracton fol. 36. And therefore the certainty of the law in this case is That he that holdeth by a whole and entire Knights fee must serve the King or other Lord fortie dayes in the warres well and sufficiently arrayed and furnished at all points and by twenty dayes if he hold but the moitie of a Knights fee and so proportionably vide Littleton fol. 20. Aâ—no 7. E. 3. 1333. fol. 246. It was demurred in Judgement whether the 40. dayes should be accounted from the first day of the muster of the Kings Hoast or from the day that the King doth first enter into Scotland but it seemeth that the dayes shall be accounted from the first day that the King doth enter into Scotland because the Service is to bee done out of the Realme And they who hold per regale servitium are not to performe that service unlesse the King doe also go himselfe into the warres in proper person and that by the opinion of Sir William Hall Chiese Justice of the Court of â—ommon Pieas Term. Trin. Anno. 7. Ed. 3. fol. 246. but see Anno 3. H. 6. Titulo protec 2. In which case it was observed that seeing the protector who was pro Rex went the same was adjudged a Voyage Royall vide Cook 7 part of his reports and in Fitz-â—erbert Natura brevia 28. fol. 83. Also when before the statute De quia emptores terrarum made Anno 18. Ed. 4. the King or other Lord had given
Lands to a Knight to hold of him by service in Chivalry to go with the King or with his Lord when the King doth make a Voyage Royall to subdue his Enemies by 40 days well and conveniently arrayed for the Wars In this case the Law hath such regard to the dignity of Knighthood that he â—ay find an able person to go in that expedition for him and the Knight is not compellable by his tenure to go in person as do ordinary souldiers who are hired and entertained by prest money or wages Anno 7. Ed. 3. 296. 600. 8. part fol. 49. b. And see Littleton fol. 20. another reason in this case There have bin many vaâ—rying opinions of Countries of a Knights Fee as you may read in 5. Ed. Cooke 9. part of his Reports fol. 124. where he seemeth to prove that antiquity hath thought that 20. l. in land was sufficient to maintain the degree of a Knight as it appeareth in the ancient Treatise De modo tenendi Parliamentum tempore Regis Edw. filii Regis Etheldred Which also doth concur with that Act of Parliament made Anno 1. Ed. 2. de militibus by which Act of Parliament Census militis The state of the Knight is measured by 20. l. land a year and not by any certain content of acres and with this doth agree the state of Westmin ca. 36 and Fitz-natum Brev. 82. where 20. l. land in socage is put in Equipage with a Knights Fee and this is the most reasonable estimation for one acre may be lesse in value then many others vid. An. 27. E. 3. c. 11. the printed books of the titles of honor 319. M. Selden nata And it is to be observed that the relief of a Knight of all Superiours that are noble is the 4. part of their revenue by the yeer as of a Kt. 5. l. which is the 4. part of 20. l. sic de cet And this doth appear by the statute of Mag. charta ca. 8 as in Cooks 9. report f. 124. b. And because this tenure doth concern service in war the Tenants therfore are named milites a militia For though the word do properly signifie a souldier yet antiquity hath appropriated that name to the chiefest of the military profession vid. Bract. f. 35. b. In our law they are stiled Miles and never Equites yet so that Miles is taken for the selfsame that Chevalier by M. Selden in his Titles of Honour 1. Impression f. 334. Bracton f. â—9 maketh mention of Râ—d-knights that is to say serving horsemen who held their lands with condition that they should serve their Lords on horseback and so by the cutting of a piece of a name as our delight is to speak short this name of Knight remaineth with us Cambden fol. 171. for Armiger scilicet Esquire which is a degree under a Knight was in the Militarie Service Note that he that holdeth by a whole Knights Fee must bâ— with the King by 40. days well and conveniently arrayed for the war Littleton fol. 20. which is to be understood to serve on horseback And in all Nations the name of this dignity is taken of Horses for the Italians calleth them Caveleiri the French-men Chivalers the Germans Roysters our Britains in Wales Morgogh All of Ryding in Latin we call them equites aurati for at their creations beside the sword and girdle guilt spurs were added for a matter of more ornament See the statute of Anno 8. H. 5 C. 3. M. Selden f. 317. and when a Knight doth commit any offence for which he is by the Law to suffer death The use hath bin in the beginning of this punishment to degrade and deprive him publikely of his Honour of Knighthood For it is but life lost or taken away Vide Mills fol. 81. by ungirding his Military girdle by taking away his sword his guilt Spurs cut off with a Hatchet his Gauntlets pluckt off from him and the schochean of his Arms reversed 4. E. 4. 20 Cambden 171 b. and of the degradation of a Knight which was Andrem Horkley under E. 2. who was a Scot born by that King created Earl of Carleile vide Selden his Titles of Honour fol. 337. And by the statute made Anno 24. H. 8. cap. 13. intituled An Act of Reformation of apparell It was permitted for Knights to wear in a Collar of Gold named a Collar of 55. Esses And although this dignity of Knighthood had its originall and was given to men of war yet in all successions of Ages and in all Nations the same also is bestowed on men of peace by Sovereign Kings that in severall Functions and places in the Common-weal be of singular desert wherby the service of the Common-weale at home is levelled and made equall with that abroad for as Tully said truly Parva sunt focis Arma risi est Consilium domi He that receiveth the Dignity of a Knight kneeleth down and the King slightly smiteth him upon the shoulder speaking these words unto him therwithall in French So is Chevalier a nome de dieu that is to say Be thou a Knight in the name of God and then afterwards therupon the King saith Avances Chevalier that is arise Sir Knight vide Hooker al. Vocrell his C. 10. fol. also Selden f. 37. who there speaketh of our Earl Marshal of England for making of Knights for a Knight is not made by Letters pattents or by the Kings Writs as are those of greater dignity but by the sword For this Honour is supposed to be given on the sudain and therfore it is commonly done only by the sword without any pattent but the King may by his Letters Pattenâ—s create a Knight Earls in ancient time had power in Knighthood M. Selden title Honors fol. 136. But now neither may the Prince nor any other of the Nobility make a Knight but only the King or his Lieutenant by Commission hereof vide Cook 6. part Dyer reports f. 74. b. No man is born a Knight Selden f. 3. 18 as he may be to titles of Honour Causa patet But a Knight may be made so soon as he is baptized as in that book is mentioned excepts Knights Barronets whose posterity doth receive that title by discent with some limitation as in the Kings Books therof may appear Note also in the said Titles of Honour fol. 318. and 313. the first Knight made in England With us in England there are divers sorts of Knights wherof Camden fol. 171. and Mills do write at large but my purpose is only to speak of one order of them amongst the Romanes there was but one Order of them And these were next in degree to the Senators themselves as with us they are to the Barons and they who simply without any addition be called Knights howsoever they are in Order ranked last yet by institution they be first and of greatest antiquity and the other attributes according to the severall inventions of particular Princes And I do not
of dignity and the Entry of Capias alias plures was according to the said originall but in the Exigent and Proclamation and in the Entry of it the Defendant was named according to his degree of Dignity upon a Writ of Errour after judgment doubt was if this might be amended in another Court then where the originall was made and at last it was resolved by all the Court that the Record should be amended by the Cursitor and made according to the Note or Title delivered unto him by the Plaintiffes Attorney Cook 8. part fol. 15. b. It appeareth in our Book of Law that the highest and lowest Dignity are uniuersall For as if a King of a Forreign Nation come into England by leave of the King of this Realm as it ought to be in this case he shall sue and be sued in the name of a King 11. Ed. 3. Test Breccon 473. So shall he sue or be sued by the Name of a Knight whersoever he received that degree of Dignity 20. Ed. 4. 6. H. 6. 14. but otherwise it is as if a Duke Marquesse Earl or other Title of Honour given by any Forreign King yea though the King by Letters Pattents of safe conduct do name him Duke or by any other his forreign Title of Dignity For experience sheweth that Kings joyned in league together by a certain mutuall anâ— as it were a Naturall power of Monarchs according to the Law of Nations have denized one anothers subjects and Ambassadors graced with this title of Honour Therefore though a Knight receive his Dignitie of a Forraigne Prince he is so to be stiled in all Legall proceedings within England Vide Cooke 7. part fol. 16. b. And Kings were wont to send their sonnes to their Neighbour Princes to receive Knighthood at their hands Vide Selden fol. 331. 308. thinking that it was more honourable to take Armes of some other lest affection might seeme to prevent judgement when the father gave them that honour Thus was our King H. 2. sent unto David King of Scots and Malcombe also king there sent unto our H. 2. and our king to the king of Castile to take of them Military or Civill Armes for the tearmes and phrases they used in that age for the making of a knight Vide Camden 174. 8. vide Selden fol. 315. And knights in all forraigne Countries have ever place and precedencie according as they are ancient knights which priviledge is deemed to Noblemen for be they never so ancient in forraigce Countries they shall goe before as Puesneys The degree of knighthood is not onely a Dignitie and honour to the party for so it is termed in Brooke title Additions fol. 44. but honourable for the kingdome and therefore it hath been an ancient Prerogative of the kings of this Realm at their pleasure to compell men of worth to take upon them this degree upon the payment of a Fine as appeareth in Ann. 7. H. 6. 15. Fitzh Abridg. tit Im. 12. and by the Statute a. 1. Ed. 2. de militibus But we see by experience in these daies that none are compelled thereunto and that is the reason wherefore if the Plaintiffe be made knight hanging the Writ it shall abate because hâ— hath changed his name and that by his owne act Vide Cooke 7. part f. 27. b. part 10. b. 1 Ed. 6. cap. 7. contrary And for that cause also by the common Law not only the king but every Lord of a Manor ought to have of every of his tenants a reasonable fine to make his eldest son knight Vide Bracton fol. 36. b. and all lands are subject to these aides except onely ancient Demeasnes and grand and petty serjeantly tenures as the Law hath been anciently delivered Vide Fiszh Nat. bre f. 83. a. and Selden f. 13. where it is also said one that wrote a little after the statute of West the first allowes as a good barre to the avowry for the tenant to plead that the father himself is no knight so that one not knighted cannot claime the aide of his own Tenants Briton de Prises de Avers And it was not at the liberty of the Lord to make more or lesse of his Tenants by the common Law in this case but by the statute at Westminster 1. cap. 35. it is put into certainty viz. forasmuch as before this time reasonable and to make one son knight or to marry his daughter was never put into certainty nor how much should be taken at that time whereby some levyed unreasonable aide and more often then seemed necessary whereby the people were sore grieved And it is therefore provided that from henceforth a whole knights fee be taken but 20. s. and of more more and of lesse lesse after that rate and that none shall levie such aide to make his son knight untill the sonne be 15. yeares of age nor to marry his daughter untill she be of the age of 7. yeares and of that there shall be mention made in the kings Writs formed on the same if any one will demand it and if it happen that the Father after he had leavied any such aid of his Tenants did before he hath marryed his Daughter the Executors of the Father shall be bound to the daughter for so much as the Father received for the Aid And if the Fathers goods be not sufficient his heir shall be charged therwith unto the daughter and this Heir is so incident that although the Lord do confirm unto the Tenant to hold by fealty and certain Rent and release unto him all other services and demands yet he shall have the aid to make his eldest Son Knight Anno 40. E. 3. f. 22. Finches book 24. but the King was not bound by the statute beforementioned because the King was not named in that statute and therfore by the statute 25. E. 3. cap. 11. The Kings aids were brought to a like value Selden fol. 3. 30. The intention of the Law is that an heir within the age of 21. years is not able to do Knight-service till his full age of 21. years Littleton lib. 2. cap. 4. f. 22. But such a presumption of Law doth give place to a judgment and proof to the contrary as Bracton saith Sabilitur presumptioni donec probetur in contrarium And therfore the King who is the Sovereign and Supream Judge of Chivalry hath dubbed him Knight he by this hath judged him able to do him Knight-service and all men concluded not to say to the contrary therfore such an heir being made Knight either in the life of his Father or afterwards during his minority shall be out of ward and custody both for Lands and for his body or marriage by the ancient common Law by reason also that the Honour of Knight-hood is so great that it is not to be holden under by any yet if the King do create any such an Heir within Age a Duke or Marquesse Earl Count Viscount or Baron by this
he shall be out of ward and custody both for his Land and for his body vide Cook 6 part 74 a. And therfore it is provided by the statute of Magna Charta Cap. 3. Ita tamen quod si ipsâ— dum infra atatem fuerint fiat miles nihil ominus terra remaneat in custodia dominorum suorum So that although such an heir within age be made a Knight and therby to this purpose is esteemed of full age yet the Laws shall remain in the custody of the Lord till his age of 21. years by the provision of the said Act. Quere if the son and heir of the Tenant of the King by Knight-service c. be made Knight in Paris by the King of France whether he shall be out of wardship after the death of his Father or no for therby he is a Knight in England Cook 7. par a. 2. E. 4. fo b. tamen vide Cooks 6. par 74. b. Mention is only made of Knights made by the King himself or by his Lieutenants in Ireland But when the King doth make an heir apparent within age of a Tenant by Knights service a Knight in the life time 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 ful age so that when his Ancestor dyeth no Interest in the body nor in the Land shall invest but the Knight may tender his livery as if he were of full age and in this case the King shall have primer seisin as if he had bin 21. years old at the time of the decease of his Ancestor and not otherwise Cooks 8. part fol. 171. a. for the statute of Magna Charta doth not extend unto it For the purpose of it doth extend only when the Heir is in ward infra etatem is made Knight then remaneat terra in Custodia But when the Heir is in ward being Knight in the life of his Ancestor then the Custody cannot remain or continue which had never any inception or essence Also when the Heir after the death of his Ancestour within age is made a Knight if after tender made unto him he within Age doth marry else-where yet he shall not pay the Forfeiture of his Marriage For by the making of him Knight he is out of ward and custody of his Lord for then he ought to be sui juris and may imploy himself in Feats of Arms for defence of ths Realm and therfore may not be within the Custody or keeping of another but none shall pay any Forfeitute but when after refusall he doth marry himself during the time when he is under the Custody or keeping of his Lord. And this doth appear by the statute of Merton cap. 6. Si maritaverit sine licentia Domini sui ut ei auferat Maritagium suum c. Which Words cannot be understood when he is out of Ward and Custody no more then when he is married after his age of one and twenty years Note hereby may appear that the King may present his Grant or other Lords of the double value by Knighthood yet in such a Case presently after the Heir is made Knight after the Death of his Ancestour the Lord may have a Writ de valore Marigii for the single Cooks 6. part 74. and 75 and note Plowden f. 267. Also by the ancient Common-law of this Realm if a Villain be be made a Knight he is immediatly enfranfranchized Olanvile lib. 5. cap. 5. f. â—7 and Bracton lib. 4. cap. 198. b. Or if a Ribauld or man of base Birth and Condition had strucken a Knight he should by the ancient Laws have lost his hand wherwith he offended Britton 19. in his appeales But in France it was judged antiently that when a Lord of a villain had Knighted his villain being a Gentleman he became Free and had the Honor lawfully but if another Lord had Knighted him nothing had bin wrought by it For none could mannue him but the Lord and till Mannumission or till Knighthood had civill Freedome for his ground he was not capable of it except by the King only vide Seldens Titles of Honour fol. 318. It was enacted in Parliament Anno 6. Ioh. Regis in hec verba Rex vicecom c. Sciatis quod consensum est cum assensu Archieporum Comit. Baronium omnium fidâ—lium urum Angl. quod Novem milites per totam Angl. invenient decimum militem bene paratum equis Armis ad defensionem Regni nostri vide Cook before his ninth Book b. There hath ever bin and still is great use of the service of Knights even in civil affairs and concerning matters of Iustice as in a Writ of right which is the highest writ in the law for the trials of titles touching the inheritance of lands the Tenant is at election to have his tryall by a grand assize or else by battle if by the great assize then Wâ—â—t de magna assiza Elegenda shall be taken out And upon the return of that Writ those four Knighâ—s nominated must appear Gladiis cinctis Dyer 79. f. 103. If the Tenant make his election by Battle each parties are to choose their Champions and the Court shall award the Battle and the Champions shall be a mainprise and sworn to perform the Battle 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 their Squadrant that is to say every square 60. foot East West North and South and the place or Court for the Justices of the Common Pleas without and upon the Lists furnished with the same Cloths which belong to their Court at Westminster and a Barre there shall be made for the Sergeants at Law and the Robes of the Justices and Sergeants shall be of Scatlet with their Coifes as it was Anno 13. Eliz. and then was made Proclamation with three O. yes c. and the Demandant was first solemnly demanded and did not appear Wherupon the Mainprise of the Champion was demanded to bring forth the Champion of the Demandant who came to the place apparelled with red Sandalls upon his black Armour bare legged from the knee downwards and bare headed and bare Arms to the Elbowes being brought in by a Knight namely by Sir Ierome Bowes who carryed a Red Baston of an Ell long typt 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 and then came towards the Bar before the Justices with their solemn Congies and there was he made to stay on the Southside of the place being the right side of