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
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
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
is no heire male at all that may claime the same for then doth this question take place whether the husband of such heire female shall enioy the dignitie in the right of his wife or no wherein wee are to rest upon a resolution had and given in this speciall question which was in this manner In the time of Hen. 8. when Mr. Winbie tooke upon him the stile of Lord Talboys in the right of his wife having none issue by her the said King assisted both by Civill and Temporall Lawyers gave sentence that no husband of Baronesse in her right should use the stile and dignitie untill he had by her a Child whereby he should become Tenant by the courtesie unto her inheritance The speciall reasons that occasioned this sentence were two First it should be inconvenient for her husband this day to bee a Baron and Peere of the Realme and to morrow by the death of his wife to become none and that without the death of the partie Secondly if he had issue by his wife and were intituled to be Tenant by the curtesie of England of the wives land if hee shall not also beare the stile and dignitie of her Barony then should his sonne after the death of his mother dying in the life time of his father bee Baron and Lord without land for so the Father should have the land as Tenant by the curtesie and the sonne the Lordship without Land And thus much said concerning the nature quality and estate of a Baron by writ and for resolution of the severall points and Articles of the question proposed may suffice Barons by Patent which is the third kind of Barons mentioned in the former division of Barons THere is also a fourth meanes of creation by act of Parliament but the first 2. mentiond and this by Patent are most for the honour of the King for thereby the donation doth proceed from his highnes onely as from the fountaine of all honour and dignity but when the creation is by Parliament every one may bee said donator Cookes 8. part 19. A Baron by creation by reason of Letters Patents is that Noble person whom the Kings Maiesty or any of his progenitors Kings of the Realme have created Barons by such their Letters Patents But this manner of creating Barons by Patent began in the Raign of R. 2. who created first Iohn Beauchamp of Holt Baron of Kidderminster by his Letters Patents 8. October anno 11. But Mils saith in 30. H. 6. this was brought in This kind of dignity of Baron shall bee of such countenance in discent or otherwise as shall beelimited in the Habendi in such Letters Patents contained for it may be but for the life of him to whom it is given or for terme de anter vie of some other mans life as some hold opinion in 9. H. 6. 29. for Cujus est dare eius est dispoâ—ere it may be in speciall a generall tayle and this kind of estate tayle was usuall before the Statute made 13. E. 1. by which estate tayle in Lands and Tenements was created as appeareth by the Patent whereby Hubert de Burgo was made Earle of Kent in the time of H. 3. by these words Habend sibi hered suis de corpore Maâ—gaâ—etaeuxoris suâ— sororis Alexandri Regis Scotiâ— procreatis pro defectu talis exitus remaâ—ere rectis heredâ—bus dicti Huberti and that estates in tayle are at this day titles of honour by the Statute of Westm 2. vide Nevils case Cooks 7. part 33. For the better explanation of this kind of dignity the resolution also of certaine questions shall be very requisite Question If a Nobleman and his Progenitors have for a long time been called to the Parliament and be a Baron either by tenure or writ have had in regard thereof a place certaine in Parliament if afterwards the same Nobleman should be created a Baron of that Barony and by the same name by Letters Patents whether shall hee and his heires retaine his old place in Parliament which hee had according to the former dignity or whether shall he lose â—is old place and take a new place according to the time of his creation onely Answer The case of the Lord Delaware received a resolution Coo 11. part â—â—e Lord de la wares case somewhat answerable to this question Tho. Lord Delaware 3. â— 6. being in some displeasure with William West his Nephew and heire who was Father to the now Lord De la ware procured an Act of Paâ—liament by the which the said Wâ—ll West was during his naturall life only clearly disabled to clayme demand or have any manner of right title or interest by discent â—evenue or otherwise in or to the mannor lands tenements or hereditaments title and dignity of Thomas Lord De la wâ—re his Vncle Afâ—er the said Thomas De la ware dyed and the said VVilliam West was in the time of the late Queene Elizabeth restored and afterwards in the 8. yeare of her Raigne was â—teated Lord De la ware by Patent and had place in Parliament according to his creation by Patent for that by the said Act of Parliament in the time of E. 6. hee was excluded to challenge the former ancient Baâ—ony and after hee dyed whether the new Lord Dela ware should take his place to the ancient Barony by writ or according to his Fathers creation by Patent was the question the opinion of the late Queenes Counsell being Her Majesties Atturney Generall and Solicitor were that the acceptance of the new creation by the said William West could not distinguish the ancient dignity in him at the time of his creation but the dignity was at that time by the Act of Parlâ—ament 3. E. 6. in obeyance suspence or consideration of Law and hee thereby utterly disabled to have the same during his life only so as other acceptance could not extinguish that dignity which hee then had not nor could not conclude his hâ—ire who was not disabled by the said Act of 3. E. 6. to clayme the ancient Barony which opinion of theirs was seene and allowed by the resolution of the chiefe Iustice of England and Lord chiefe Baron and so signified unto the Lord Keeper but this is to bee noted by the reasons made for the said resolution that if the said William West had beene Baron and intituled or in possession of the ancient dignity when hee accepted the said creation the Law perchance might have been otherwise but that remayneth as yet unresolved neverthelesse the rule eodem mod quo quid constuitur dissolvitur but by grant which is made a matter in fact a man cannot transferre his title of honour Cook 7. part And thus much concerning the three degrees of Barons within this Realme may suffice to be said in geneâ—all upon this occasion for the better understanding and direction of that which followeth to be handled And in this place I thinke it not impertinent
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
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
not to have them learned in the Lawes nor to live by the practice thereof but onely upon their Fathers allowance vide Fortescue de landibus Anglorum cap. 49. But the Statute of An. 3 Iac. cap. 4. amongst other things it is enacted that if any Gentleman or Person of high degree shall hereafter goe or passe voluntarily out of this Realme to serve any forraine Prince State or Potentate before that hee or they shall become bounden with two sureties as shall bee allowed of the Officers by that act limited to take the said bond unto the King his Heires and Successours in the summe of twenty pounds of currant English money at the least with condition to the effect following hee shall bee a felon viz. That if the within Bounden c. shall not at any time then after bee reconciled to the Pope or Sea of Rome nor shall enter into or consent unto any practise plot or conspiracy whatsoever against the Kings Majesty his Heires and Successours or any of his or their estate or estates Realmes and Dominions but shall within convenient time after knowledge thereof had revealed and disclosed to the Kings Majesty his Heires and Successours or some of the Lords of his or their Privy Counsell all such practises plots and conspiracies and that then the said obligation to bee void c. Of Yeomen THe Yeomanry or Common people for they bee called of the Saxon word Zemen which doth signifie Common who have some lands of their owne to live upon for a carve of land or Plow land was in antient times of the yearely value of five Nobles and this was the living of a sober man or Yeoman Cookes 9. part fol. 124. b. But in our Lawes they are called Legales homâ—nes a word very familiar in writs and inquests and by divers Statutes it hath beene enacted that none should passe in any inquest unlesse they had fourty shillings freehold in yearely revenues which maketh if the most value were taken to the proportion of moneyes above six pounds of our currant money at this present Sir Thomas Smith fol 30. and by the Statute of 27. Eliz. cap. 6. Iurours must have 4. l. in lands In the end of the Statute 23. H. 6. cap. 15. concerning the election of Knights for the Parliament it is expressely provided that no man shall bee such Knight which standeth in the degree of a Yeoman It appeareth in Lamberts perambulation of Kent that this Saxon word Telphinorman was given to the Theine or Gentleman because his life was valued at twelve hundred shillings and in those dayes the lives of all sorts of men were rated at certaine summes of money Telphinorman to the Chorle or Yeoman because the price of his head was taxed at two hundred shillings which thing if it were expressely set forth in sundry old Lawes yet extant might well enough bee found in the Etimologie of the words themselves the one called a Twelve hund as if it were a twelfe hundred And in this estate they please themselves and joy exceedingly insomuch as a man may find sundry Yeomen although otherwise comparable for wealth with many of the Gentle sort that will not yet for that change their condition nor desire to bee apparelled with the title of Gentry Lamberts estaâ—e of Kent names the Yeomanry of Kent when a Yeoman of 1000. l. yearely revenues and refâ—sed any other superiour title but these are now no more heard of c. By the Common Law as may appeare in An. 1. E. 2. De militibus in An. 7. H. 6. 15. men that had lands of the yearely value of 28. l. were compâ—llable at the Kings pleasure to take upon them the order of Knight-hood and upon summons there came a Yeoman who might dispend 100. markes per annum and the Court was in doubt how they might put him of and at last hee was wayved in because hee did come the second day An. 7. H. 6. fol. 15. a. By this sort of men the triall of causes in the Countrey proceedeth ordinarily for of them there are greater number in England then in any other place and they also of a more plentifull livelyhood and therefore it cometh that men of this Countrey are more apt and fit to discerne in doubtfull causes of great examinations and trials then are men wholly given to moyling in the ground to whom the ruralâ— exercise engendreth rudenesse of wit and mind and many Franklins and Yeomen there are so neere adjoyning as you may make a Iury with little difficulty For there bee many of them which bee able to spend 100. l. a yeare vide Fortescue de landibus Anglorum c. As in ancient time the Senatours of Rome never elected a Censor and as with us in conserving of Nobility respect is had unto the Revenues by which their dignity and Nobility may bee supported and maintained Cookes 7. part 33. b. so the wisedome of this Realme hath of ancient provided that none shall passe upon Iuries for the trials of any matters reall or personall or upon any criminall cause but such as besides their moveables have lands of estate for life at the least to a competent value least for need and poverty such Iurours might easily bee corrupted and suborned Fortescue 56. b. And in all cases and causes the Law hath conceived a better opinion of those that have lands and tenements or otherwise are of worth in moveable goods presuming that such will commit or omit nothing that any way may bee prejudiciall to their estimations or which may endanger their estates then hath Labourers Artificers Retaylers or such like of whom Tully saith Nihil proficiunt in se admâ—dum mentiuntur and by divers Statutes certaine immunities are given to men of quality which are deemed to the vulgar sort of people read hereof amongst other in An. 1. Iac. cap. 127. By the Statute of 2. H. 4. cap. 21. amongst other things it is enacted that no Yeoman should take or weare any livery of any Lord upon paine of imprisonment and to make fine and ransome at the Kings will FINIS