Parliament by Writ as Baron such Heir Male omitting the Husband of the Issue of such Heir Female And this also appeareth by a notable Controversie in the time of Henry the Seventh between Sir Robert Willoughby Lord Brook and Richard Lord Lattimer for the Barony of Lattimer which in effect was The said Lord Brook did challenge the Barony of Lattimer as Coâ—in and Heir of Elizabeth his Great-grandmother who was Sister and Heir of Iohn Nevill Lord Lattimer who died without Issue And hereupon exhibited a Petition to Henry the Seventh in Parliament whereunto Richard Lord Lattimer was called to answer because he then enjoyed the said Title and Dignity The said Richard Lord Lattimer did by his Answer shew That after the death of the said Iohn Nevill Lord Lattimer without Issue the said Elizabeth was his Sister and next Heir and married unto Thomas Willoughby Knight second Son of the Lord Willoughby But Henry the Sixth for that the said Iohn Nevill Lord Lattimer was dead without Issue and that the next Heir was Female did therefore call to the Parliament George Nevill Knight second Son of Henry Earl of Westmoreland to be Lord Lattimer as Cosin and next Heir Male of the said Iohn Nevill Lord Lattimer which George was Grandfather of the said Richard Lord Lattimer Father of the said Richard In debate of which cause the Question now in hand namely Whether a Barony by Writ may descend to the Heirs Female was advisedly considered of by the King and his Nobility in Parliament and in the end adjudged with the said Richard Lord Lattimer which President doth afford us two Judgments in this point And in the time of Henry the Sixth when the Writ was directed to the said Sir George Nevill Knight whereby he was summoned as Lord Lattimer to the Parliament and as Heir Male and not the said Thomas Willoughby Knight husband of the said Elizabeth Heir Female And the second Judgment was given in the time of Henry the Seventh whereby the said Barony was adjudged to the said Richard Lord Lattimer coming out of the special Heir Male against the Lord Brook descended of the general Heir Male. But here in this President before remembred of the Barony of Dacres may be objected to encounter this Conclusion for there was an Heir Female married unto Sir Richard Fines who by the Declaration of King Henry the Sixth was Baron of Dacres in right of his wife And there was also Ralph and Humphrey the Heirs Males before whom the Heir Female was preferred by the censure of Henry the Sixth and Edward the Fourth This Objection is easily answered for although Henry the Sixth through the Princely favour which he bore unto Sir Richard Fines had declared him to be Lord Dacres in right of his wife yet notwithstanding did Ralph Dacres being Heir Male then unto the Lord Dacres and by that name was attainted in Parliament Anno primo Hen. 4. Wherefore the reason why the Heir Male could not be regarded was the said Attainder of the said Raâ—ph and Humphrey his brother and therefore when Humphrey in the 12 th of Edward the Fourth laboured to have the said Attainder Reversed he submitted himself to the Arbitrement of the King who to satisfie both Competitors both having deserved of him after he had admitted them to his favour he allowed one to be Lord Dacres and the other to be the Lord Dacres of Gillesland And thus much concerning the second Point Whether a Barony by Writ may descend unto the Heir Female The third Point As concerning the third Point admitting such Descent to be to the Heir Female when there is no Heir Male that may claim the same for then doth this Question take place Whether the husband of such an Heir Female shall enjoy the Dignity in right of his wife or no Wherein we are to rest upon a Resolution had and given to this special Question which was in this manner In the time of Henry the Eighth when Mr. Winby took upon him the style of Lord Talbois in right of his wife having no Issue by her The said King assisted both by Civil and Temporal Lawyers gave Sentence That no husband of a Baroness in her right should use that Style and Dignity until he had by her a Child whereby she should become Tenant by Courtesie unto her Inheritance The special Reasons that occasioned this Sentence were two First It should be convenient for her husband this day to be a Baron and a Peer of the Realm and to morrow by the death of his wife to become none and without the default of the party Secondly If he had Issue by wife and were entituled to be Tenant by the Courtesie of England of his wives Lands if he shall not also bear the Style and Dignity of his Wives Barony then should the Son after the death of his mother dying in the life time of his father be a Baron and Lord without Land for so the father should have the Land as Tenant by Courtesie and the Son the Lordship without Land And thus much said concerning the Nature Quality and Estate of a Baron by Writ and for the Resolution of the several points and Articles of the Question proposed may suffice CHAP. XII Barons by Patent which is the third kind of Barons mentioned in the former Division of Barons THere is also a fourth means of Creation viz. by Act of Parliament but the first two mentioned and this other by Patent is most usual for the Honour of the King for thereby the Donation doth proceed from his Majesty only as from the Fountain of Honour But when the Creation is by Parliament the King ever is one and may be said to be Donor A Baron therefore by Creation by reason of Letters Patents is that noble Person whom the King or any of his Progenitors Kings of this Realm have created Baron by such their Letters Patents began in the Reign of King Richard the Second This kind of Dignity of a Baron shall be of such continuance in Descent or otherwise as shall be limited in the Habendum in such Letters Patents contained for it may be but for the life of him to whom it is given or for term vanter vie as some hold Opinion in the 32 of Hen. 6. for cujus est dare est disponere It may be in special in our general Tayl and this kind of Tayl was usual before the Statute made decimo tertio of Edw. 1. by which Estate Tayl of Lands and Tenements was created as appeareth by the Patent whereby Hubert de Burgo was made Earl of Kent in the time of Henry the Third by these words Habendum sibi haeredibus suis de corpore Margaretae uxoris sui sorors Alexandri Regis Scotiae procreatis pro defectu talis exitus remanere in directis haeredibus dicti Huberti And that Estates intayl are at this Day of Titles of Honour by the said Statute of Westminster the second Question If a
boast of and principally with hearts that contemn death it self which to other Nations is so dreadful having an affection to Arms and are covetous of Fame Soveraignity and Honour above other men But it may be objected How then comes it to pass that we are confined within the narrow Bounds of our Brittish Seas Secondly Wherefore have we quitted our Claim to France or suffered it to lye dormant so many Ages To the first may be Answered That it was the piety of our Princes to content their selves within their own Limits and were unwilling to be troublesome to other Princes until our Henry the Second was supplicated by the Irish to commiserate their Calamities and deliver them out of their Intestine Broyls into which their irreconcileable Divisions and unchristian-like Fewds had plunged them Thus by Composition rather than Conquest was our Soveraignity confirmed in Ireland and the Charter signed by the Irish Princes and the Commonalty which being transmitted to Rome was confirmed by Pope Adrian about the Year 1174. For France it may also be Answered That we were constrained to vindicated a just Title to that Crown by force of Arms when Arguments and fair Means would not prevail and for the loss of it 't is apparent in all Histories that our Discords at home not the Courage or Force of France forced us to quit the same gaining with few Blows what otherwise they would not so much as have attempted Add hereunto the covetousness and envy of some of our Natives who being themselves out of Command will yield any tearms to a Forreign Enemy rather than maintain an Army in pay for their security by which facile Concessions and Peace thus purchased we discourage our Souldery suffer them to lose their Discipline and to degenerate by Sloath and Idleness a Depravity which cost the Romans very dear at the beginning of their second Carthagenian War being almost ruined before they could recover their former practise of Arms but for us meliora spero War being in divers Cases just upon the Offensive part and absolutely necessary on the Defensive 't is fit we consider the proper Definition thereof It is generally said to be the Exercise of Arms against an Enemy but more properly 't is a Contention between Princes or States by force of Men under Discipline to obtain Victory And the end of War is either to obtain Victory or to live in Peace and Honour The Division of War for so much as concerns England may be of two sorts or kinds viz. Terene and Naval in open Field or upon the Seas The Art and Exercise of both are absolutely necessary it being impossible for us to secure our Shoars if we are not Masters of the Seas nor were we ever victorious in our Transmarine Attempts before our Enemies Naval Forces were conquered as appears by the Histories of Edward the Third Henry the Fifth c. Thus are our Oaken Castles our securest Bulwarks to defend us from our Enemies nor can we offend them abroad without these floating Squadrons how needful then is the excellent employ of Navigation to our Nation and how glorious or rather terrible might we be to the Universe it we did more encourage it by maintaining a Royal Navy and having an Army ready upon any occasion be it either by standing Troops or a reformed and well disciplined Militia which is held more grateful to the People in general Philip de Comines tells us of his own knowledge That the English at their first Arrival in France were very raw and ill disciplined Souldiers but within the space of two or three weeks which they spent in moderate Exercise before the French could rally up a Force to engage them they grew expert in their Weapons and became fit for the Field-Service from whence he concludes That the English of all People in the World are the most prone to War and aptest to make good Souldiers Our late Actions at home and abroad justifie our ligitimate Succession from such valiant Ancestors nor is there any thing so much wanting amongst us as Encouragement to the truly generous Martial Spirits Charles the Fifth advises his Son to preserve his old Souldiers from sloath by constant Exercise and to train up the Youth of Spain under Leaders who had Lands Goods and Relations to secure their Loyalty to the Crown if they were naturally addicted to Arms because sense of Honour or shame of Punishment with the loss of Estate must necessarily prevail more with such that can be expected from others who carry all their Interest in their Persons and have nothing to care for but their own safety Also the priviledge of wearing a Martial Robe the priority of place in some publick Assemblies or the like would much encourage Youth to Martial Discipline Nor is this only a Spanish Device but 't was the practise of the Romans who had their several Triumphs for their Victorious Generals and also particular Rewards for their private Souldiers He who had first boarded an Enemies Ship entred their Camp or Garrison slain one of their Captains in Combat taken a Standard c. was rewarded with a Silver Crown of form denoting his Exploit with a Collar of Gold or the like the wearing 〈◊〉 which in their Theatres was prized 〈◊〉 to the possession of a Seignory without â—â—ch an Honour We read of a young man â—â— Scipio's Army who had done gallant Expâ—oâ—ts in a Battel under him so that he deserved such a Reward as aforesaid Scipio judging of his mind gave him a good sum of Money exhorting him to persevere in his Valour but he with a sad countenance laid down the Gold at Scipio's feet demanding of him the Honourable Ensign of Victory in lieu of the Gold preferring Glory before Gain for which noble Act he was not only commended but advanced by the General as most fit for Honour and Office having a Spirit free from the sordid Vice of Covetousness which blasts the Fame of many a valiant Captain and ruins many a brave Army It were to be wished that such Roman Spirits were now to be found amongst us and then 't is probable the War might have proved more succesful but now-adays such true Valour gives place to Interest and to an Officer of Fortune the dread of being disbanded makes a Victory more fatal to him than a Foil for who will beat his Enemy that must feel a want when he has none to appear against What then more serviceable than a well disciplined Militia to be imployed upon all occasions at Sea and Land For the Officers as men of Estates would be glad to win Honour with hazard of their Lives and if they should return with the loss of a Limb would not put the King to the Charge of a Pension And for the Souldiers when dismist may immediately fall to their Trade or to Husbandry pleasing themselves to tell their Neighbours the Story of their Adventures Thus the large Armies of Horse which support the Turkish
then Countess of Killimeak in Ireland The Lady Dudley Dutchess of 〈…〉 The celebrated Beauties Barbara Villiers Dutchess of Cleaveland and Countess of Southampton and Louyse Rene Angelique de Carwell Dutchess of Portsmouth Countess of Petersfield c. Of Titles by Descent and Marriage there are Examples enough so that I need not trouble the Reader with any repetition I shall only set down some few general Observations not sufficiently discoursed of If a King's Daughter marry a Duke or an Earl illa â—emper dicitur Regalis by Law and Courtesie Noble women by descent Birthright or Creation remain Noble although they marry Husbands under that degree Also any Daughter of an Earl or Viscount that continues a Virgin or marrieth an Esquire yet she retaineth the Honour that sprung from her Parents and shall take place accordingly and be saluted by the Title of Lady If a Gentleman Knight or Peer marry a wife of ignoble Parents she shall enjoy the Title Name and Dignity of her Husband not only during his life but when she is a widow or afterwards married to an Ignoble person but this is by the Courtesie and not by the Law of the Realm Whereas on the contrary let a woman of Blood and Coat-Armour marry a Yeoman or Churle that is Ignoble and hath no Coat-Armour his Condition in point of Honour is in no respect advanced and she shall retain the Honour State and Dignity she was born unto Yet if she have iâ—â—ue by that Yeoman or Ignoble person she being an Heiress that Issue shall have liberty to bear her Coat but Sir Iohn Fern saith only for life and that on a Lozenge Shield with a difference of a Cinquefoil If a French Spanish or other woman Alien be married to a Peer of the Realm or to a Gentleman and be not denizened she is debarred all Priviledges and Titles due to her Husband nor can she claim any Dower or Joynture from him by the Laws of England Yet in some things our Laws are wonderful kind to the Female Sex especially procreandi causa As thus if a man and his wife separate for some fraud or private loathing of the Marriage Bed or the like and so continue for some years after which time the woman bringeth forth a Child which though got by another man and her Husband in all that time not having enjoyed her yet if he live in the Kingdom he must Father the Child and if before that time he had no Child that shall inherit his Lands if entailed or left without Will Also if a Wife be with Child when her Husband dieth and she marry another man before her delivery the latter Husband must own the Child which must be his Heir at Law if he were childless The Wives Dignities and Lands descend to her Heirs not to her Husband yet to encourage him to play the man the Courtesie of England is such that as the Wife hath the third part of his Estate in Lands for her Joynture during her life if a Widow so the Husband if he get his Wife with Child and that Child be heard to cry he shall enjoy all her Lands during his life The Wife can make no contract whatsoever that shall stand good in Law to the detriment of her Husband without his consent nor can she make a Will or dispose of what she hath whilst she is a Feme Covert â—he cannot be produced as a witness for or against her Husband nor shall she be accessory to his felonious acts although she receive the Goods or conceive the Fact if she be not personally an Actor therein Female Children are also by Law capable to give their consent to marriage at Seven years old and the Lord 's eldest Daughter is to have aid of his Tenants to marry her at that age though she may dissent from this Contract when she comes to Twelve but if at that Age she doth not dissent she is bound for life she may then make a Will and dispose of Goods and Chattels by it At Nine years of Age she is Dowable at Fourteen she might receive her Lands into her Hands and was then out of Wardship if she were Fourteen at the death of her Ancestor otherwise she was in Wardship till she accomplished Sixteen years and then she was free At One and twenty she is enabled to contract or alienate her Lands by Will or otherwise If there be no Son the Lands as well as Goods are equally divided amongst the Daughters who are Coheirs In ancient times Women amongst the Romans were thought worthy of enjoying peculiar favours and respect And out of their great love and honour to the Mother of Marcus Coriolanus for diverting his fury which he threatned the Citizens to their ruin for their ingratitude towards him the Citizens granted the Roman Dames the priviledge of wearing the Segmenta Aurea or Bordures of Gold and purple on their Garments They were also permitted to wear gold Ear-rings to have place on the way and in memorial of the said preservation there was erected a Temple dedicated to the Female Fortune Anne of Britain wife to Charles the Eighth of France as an ornamental Honour to several deserving Ladies instead of the Military Belt and Collar bestowed on them a Cordon or Lace and admonishing them to live chastly and devoutly and to put the greater esteem thereon the surrounded her Escocheon of Arms with the like Cordon from which Example it is now become the Custome for unmarried women to bear their Arms in form of a Lozenge which are commonly adorned with such a Cordon Ioseph Micheli Marquez for the further Honour of the Female Sex gives an Example of the Noble women of Tortosa in Aragon whom he calls Cavalleros or Knights For saith he Don Raymond last Earl of Barcellona who by right of his wife Petronilla sole Daughter and Heir to King Ramiro the Monk joyned his Principality to the Kingdom of Aragon having in the year 1149. taken from the Moors the City of Tortosa who in a few months after laid siege to the said City and reduced the Inhabitants to so great a strait that their intentions were of surrendring it up to the Moors but the women hearing thereof for the diverting their ruin put on mens Apparel and by a resolute Sally forced the Moors to raise the Seige And the Earl in acknowledgment of his thanks for this their Noble Act as a reward of Honour instituted an Order not much unlike a Military Order into which were admitted only those brave women and their Descendants The Badge which he assigned them was something like a Fryer's Capouch but of a crimson colour which they wore upon their Head-clothes Amongst the priviledges which this Earl granted them they were to be freed from all Taxes to have precedency of men in publick Meetings and that all the Iewels and Apparel of their deceased Husbands should be their own although of never so great value And these women having thus purchased this
this Civil Dignity they have three Laws The first Ius agnitionis the right or law of descent for the kindred of the Father's side The second Ius Stirpis for the Family in general The third Ius Gentilitatis a law for the descent in Noble Families which Tully esteemed most excellent by which Law a Gentleman of Blood and Coat-Armour perfectly possessing Vertue was only priviledged To make that perfection in Blood a Lineal Descent from Atavus Proavus Avus and Pater on the Fathers side was required and as much on his Mothers line than he is not only a Gentleman of perfect Blood but of his Ancestors too The neglect of which Laws hath introduced other sorts of Gentleman viz. men that assume that Dignity but are neither so by Blood nor Coat-Armour which style only hurries them to an unruly pride which indeed is but rude and false honour termed by Sir Iohn Ferne Apocriphate and debarred of all priviledge of Gentility These Gentlemen nomine non re saith he are the Students of Law Grooms of his Majesties Palace Sons of Churls made Priests or Canons c. or such as have received Degrees in Schools or born Office in the City by which they are styled Gentlemen yet have they no right to Coat-Armour by reason thereof As to the Student of the Law Sir I. Ferne allows him the best aâ—â—urance of his title of Gentleman of all these irregular Gentlemen as he terms them because he is named in some Acts of Parliament yet he saith he is also debarred of all honour and priviledge by the Law of Arms. And anciently none were admitted into the Inns oâ— Court as before noted but such as were Gentlemâ—◠〈◊〉 Blood be their merits never so great â—or were the Church Dignities and Preferments bestowed indifferently amongst the Vulgar The Jews confined their Prieâ—â—hood to a Family but Ieroboam debased it in his Kingdom by preferring the basest of his people to the best of duties The Russians and some other Nations admit none to the study of the Law but Gentlemens younger Sons The decayed Families in France are supported and receive new life from the Court Camp Law and Ecclesiastical Preferments take the most solemn and serious who contemn the World if such are wanting to fill up their Vacancies the Ingeniouser sort of the Plebeans are admitted by which means their Church and State is in eâ—â—eem and reverence being filled most commonly with the best Blood and Noblest by Birth amongst them whereas with us every Clown that can spare but mony to bring up his Son â—or any of those Studies bereaves the Gentry of those Benefices and robs them of their support which grand abuse is the cause of the general Corruption in the State Civil and Ecclesiastick whereas were this preferment made peculiar to the Gentry they would stand more upon their Honour and live without being a Burthen to their Relations The Atchievement of a Gentleman hath no difference with that of an Esquire both their Helmets being close and sideways OF YEOMEN CHAP. XXVII THE Yeomen or Common People for so are they called of the Saxon word Zemen which signifies Common who have some Lands of their own to live upon For a Carn of Land or a Plough Land was in ancient time of the yearly value of five Nobles and this was the Living of a Stokeman or Yeoman And in our Law they are called Legalâ— homines a word familiar in Writs and Inquests And by divers Statutes it hath been enacted That none shall pass in any Inquest unless they had forty shillings Free-hold in yearly Revenue which maketh if the most value were taken to the proportion of moneys above Sixteen pounds of currant money at this present And by the Statute of 27 Eliz. ch 6. every Juror must have Forty pounds Lands In the end of the Statute made 23 Hen. 6. c. 15. concerning the Election of Knights for the Parliament it is ordered and expresly provided That no man shall be such Knight which standeth in the degree of a Yeoman It appeareth in Lambert's Perambulation of Kent 367. that this Saxon word Telphioneman was given to the Theyne or Gentleman because his life was valued at One thousand two hundred shillings and in those days the lives of all men were rated at certain sums of Money To the Churle or Yeoman because the price of his head was taxed at Two hundred shillings Which things if it were not expresly set forth in sundry old Laws yet extant might well enough be found in the Etymology of the words themselves the one called a Twelve hundred man and the other a Twyhind for a man of Two hundred And in this Estate they pleased themselves insomuch that a man might and also now may find sundry Yeomen though otherwise comparable for wealth with many of the Gentile sort that will not yet for that change their condition nor desire to be appareled with the title of Gentry By the Common Law it may appear in 1 Ed. 2. de Militibus and 7 Hen. 6. 15. a. men that had Lands to the value of Twenty pounds per annum were compellable at the King's pleasure to take upon them the Order of Knighthood and upon Summons there came a Yeoman who might expend a hundred Marks per annum and the Court was in doubt how they might put him off and at last he was waved because he came the second day By this sort of men the trial of Causes in the Country proceedeth ordinarily for of them there are greater number in England than in any other place and they also of a more plentiful livelyhood and therefore it cometh to pass that men of this Country are more apt and fit to discern in doubtful Cases and Causes of great examination and trial than are men wholly given to moil in the ground to whom that Rural exercise engendreth rudeness of wit and mind And many Franklins and Yeomen there are so near adjoyning as you may make a Jury without difficulty for there be many of them that are able to expend One or two hundred pounds per Annum As in the ancient time the Senators of Rome were elected a Censu and as with us in conferring of Nobility respect is had to their Revenues by which their Dignity and Nobility may be supported and maintained So the Wisdom of this Realm hath of ancient time provided that none shall pass upon Juries for the trial of any matter real or personal or upon any criminal cause but such as besides their Moveables have Lands for estate of life at the least to a competent value lest for need or poverty such Jurors might easily be corrupted or suborned 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 that such will commit or omit nothing that may any way be prejudicial to their estimation or which may endanger their Estates than it hath of
Authority of Parliament made in the Eleventh of King Edward aforesaid and therefore to supply that defect in the Fifth of Edward the Third he was created Duke of Cornwall by special Charter Elizabeth eldest Daughter of King Edward the Fourth was not a Dutchess of Cornwall although she was the Firstbegotten Daughter of Edward the Fourth for the Limitation is to the First-begotten Son Henry the Eighth was not in the life of his Father King Henry the Seventh after the death of his eldest Brother Arthur Duke of Cornwall by force of the said Creation for although he was sole Heir apparent yet he was not his eldest begotten Son And the Opinion of Stamford a Learned Judge hath been That he shall have within his Dukedom of Cornwall the King's Prerogative because it is not severed from the Crown after the form as it is given for none shall be Inheritor thereof but the King 's of the Realm For example whereas by Common Law if a man hold divers Mannors or other Lands or Tenements of divers Lords all by Knights Service some part by Priority and ancient Feoffment and other Land by Posterity and a later Feoffment and the Tenant so seized dieth and his Son and Heir within Age in this case the custody and wardship of the Body and his marriage may not be divided amongst all the Lords but one of them only shall have right unto it because the Body of a man is intire And therefore the Law doth say That the Lord of whom some part of those Lands are holden by Priority and by the same Tenure of Chivalry shall have it except the King be any of the Lords for then though the Tenant did purchase that Land last yet after his death the King shall be preferred before any of the other Lords of whom the Tenant did hold the Priority And so shall the Duke of Cornwall in the same Case have the Prerogative if his Tenant die holding of him but by posterity of Feoffment for any Tenure of his Dutchy of Cornwall although the same Duke is not seized of any particular Estate whereof the Reversion remaineth in the King for the Prince is seized in Fee of his Dukedom as beforesaid Iohn of Gaunt the fourth Son of King Edward the Third took to Wife Blanch Daughter and Heir of Henry Duke of Lancaster who had Issue Henry King of England so that the said Dutchy of Lancaster did come unto the said Henry by descent from the party of his Mother and being a Subject he was to observe the Common Law of the Realm in all things concerning his Dutchy For if he would depart in Fee with any thereof he must have made Livery and Seisin or if he had made a Lease for life reserving Rent with a Re-entry for default of payment and the Rent happen to be behind the Duke might not enter without making his Demand or if he had alienated any part thereof whilst he was within Age he might defeat the Purchaser for that Cause and if he would grant a Reversion of an Estate for life or years in being there must also be Attornment or else the Grant doth not take effect But after that he had deposed King Richard the Second and did assume the Royal Estate and so had conjoyned his Natural Body in the Body Politick of the King of this Realm and so was become King then the possession of the Dutchy of Lancaster was in him as King but not as Duke which degree of Dignity was swallowed up in that of the King for the lesser must always give place to the greater And likewise the Name of the Dutchy and the Franchises Liberties and Jurisdictions thereof when in the King's Hands were by the Common Law extinct and after that time the possessions of the Dutchy of Lancaster could not pass from Henry the Fourth by Livery of Seisin but by his Letters Patents under the Great Seal without Livery of Seisin and with Attornment And if he make a Lease for Life being Duke reserving a Rent with a Re-entry for default of payment and after his Assumption of the Crown his Rent happen to be unpaid he might Re-enter without Demand for the King is not bound to such personal Ceremonies as his Subjects are Therefore to have the said Dutchy to be still a Dutchy with the Liberties to the same as it was beâ—ore and to alter the order and degree of the Lands of the Dutchy from the Crown the said King Henry the Fourth made a Charter by Authority of Parliament which is entituled Charta Regis Hen. 4. de separatione Lancastriae à corona authoritate Parliamenti Anno Regni sui primo as by the Tenor thereof may appear And so by Authority of that Parliament the said Dutchy with all the Franchises and Liberties was meerly resigned from the Crown and from the Ministers and Officers thereof and from the Order to pass by such Conveyance which the Law did require in the possessions of the Crown But now the possessions of the Dutchy by force of the said Statute stood divided from the Crown and ought to be demeaned and ordered and pass as they did before Henry the Fourth was King yet there is no Clause in the Charter which doth make the person of the King who hath the Dutchy in any other Degree than it was before But things concerning his pleasure shall be in the same estate as they were before such separation insomuch as if the Law before the Charter by Authority of Parliament adjudged the person of the King always of full Age having regard unto his Gifts as well of the Lands which he doth inherit in the right of his Crown or Body Politick it shall be so adjudged for the Dutchy Land after the said Statute for the Statute doth go and reach unto the Estate Order and Condition of the Lands of the Dutchy but doth not extend unto the person of the King who hath the Lands in points touching his person Neither doth that distinguish or alter the preheminences which the Law doth give to the person of the King For if King Henry the Fourth after the said Act had made a Lease or other Grant of parcel of the Dutchy by the Name of Henry Duke of Lancaster only it had been void for it should have been made in the Name of Henry the Fourth King of England And thus stood the Dutchy of Lancaster severed from the Crown all the Reign of Henry the Fourth Henry the Fifth and Henry the Sixth being politickly made for the upholding of the Dutchy of Lancaster their true and ancient Inheritance however the right Heir to the Crown might in future time obtain his right thereunto as it happened in King Edward the Fourth's time but after the said King Edward obtained his right unto the Crown in Parliament he attainted Henry the Sixth and appropriated and annexed the said Dutchy again to the Crown as by the Statute thereof made in the first of the King's Reign
Heraldry written by Iohn Guillim about fol. 18. That Sisters are allowed no differences of Badges in their Coat-Armour by reason that by them the name of the House cannot be preserved but are admitted to the Inheritance equally and are adjudged but one Heir to all intents and purposes whatsoever And the knowledge of this point in these days is worthy to be enquired into for this is to be observed out of Presidents and to be acknowledged of every dutiful Subject that the King can advance to Honour whom he pleaseth And therefore whereas Radulph Cromwell being a Baron by Writ died without Issue having two Sisters and Coheirs Elizabeth the eldest married unto Sir Thomas Nevill Knight and Ioan the younger married to Sir Humphrey Bowcher who was called to Parliament as Lord Cromwell and not the said Sir Thomas Nevill who married the eldest Sister And Hugh Lupus the first and greatest Earl of Chester Habendum sibi haeredibus adeo libere per gladium sicut iple Rex tenuit Angliam per tenorem Hugh died without Issue and the Inheritance of his Earldom was divided amongst his four Sisters and the eldest had not the Seigniory entire unto herself If a Woman be Noble by Birth or Descent with whomsoever she doth marry although her Husband be under her Degree yet she doth remain Noble for Birth-right est Character indelebilis Other Women are enobled by Marriage and the Text saith thus viz. Women ennobled with the Honour of their Husbands and with the Kindred of their Husbands we worship them in the Court we decree matters to pass in the Names of their Husbands and into the House and Surname of their Husbands do we translate them But if afterwards a Woman do marry with a Man of a baser Degree then she loseth her former Dignity and followeth the condition of her latter Husband And concerning the second disparaged Marriage as aforesaid many other Books of the Law do agree for these be Rules conceived in those Cases Si mulier nobilis nupserit ignobili desinit esse nobilis eodem modo quo quid constituitur dissolvitur It was the Case of Ralph Howard Esq who took to Wife Anne the widow of the Lord Powes they brought an Action against the Duke of Suffolk by the Name of Ralph Howard Esq and the Lady Anne Powes his Wife and exception was taken for mis-naming of her because she ought to have been named of her Husband's Name and not otherwise and the Exception was by the Court allowed For said they by the Law of God she is Sub potestate viri and by our Law her Name of Dignity shall be changed according to the Degrees of her Husband notwithstanding the Courtesie of the Ladies of Honour and Court Dyer 79. And the like is also in Queen Maries Reign when the Dutchess of Suffolk took to her Husband Adrian Brook Title Brief 54. 6. And many other Presidents have been of later times And herewith agreeth the Civil Law Digest lib. 1. title q. lege 1. In this Case of acquired Nobility by marriage if question in Law be whereupon an Issue is taken between the Parties that is to say Dutchesses are not Dutchesses Countesses are not Countesses and Baronesses are not Baronesses the Trial whereof shall not be by Record as in the former Case but by a Jury of Twelve men and the reason of the diversity is because in this Case the Dignity is accrued unto her by her Marriage which the Lawyers term Matter in Fact and not by any Record But a Noble Woman by marriage though she take to her second Husband a man of mean Degree yet she may keep two Chaplains according to the Proviso in the Statute of 11. Hen. 8. Case 13. for and in respect of the Honour which once she had viz. at the time of the Retainer And every such Chaplain may purchase Licence and Dispensation c. And Chaplains may not be Non-residents afterwards And forasmuch as the retaining of Chaplains by Ladies of great Estate is ordinary and nevertheless some questions in Law have been concerning the true understanding of the said Statute Law I think it not impertinent to set down subsequent Resolutions of the Judges touching such matters So long as the Wife of a Duke is called Dutchess or of an Earl a Countess and have the fruition of the Honour appertaining to their Estate with kneeling tasting serving so long shall a Baron's Widow be saluted Lady as is also a Knight's Wife by the courtesie of England quamdiâ— matrimonium aut viduitas uxoris durant except she happen to clope with an Adulterer for as the Laws of this Kingdom do adjudge that a Woman shall lose her Dowry in that as unto Lands Tenements and Justice so doth the Laws of Gentry and Nobleness give Sentence against such a Woman advanced to Titles of Dignity by the Husband to be unworthy to enjoy the same when she putting her Husband out of her mind subjects her self unto another If a Lady which is married come through the Forest she shall not take any thing but a Dutchess Marchioness or Countess shall have advantage of the Statute de Charta Forest. 12 Artic. during the time that she is unmarried This is a Rule in the Civil Law Si filia Regis nubat alicui Duci vel Comiti ducetur tamen semper regalis As amongst Noble Women there is a difference of Degrees so according to their distinct Excellencies the Law doth give special priviledges as followeth By the Statute 25 Edw. 3. cap. 1. it is High Treason to compass or imagine the death of the Queen or to violate the King's Companion The King's Response is a sole person except by the Common Law and she may purchase in Feesimple or make Leases or Grants with the King she may plead and be impleaded which no other married Woman can do without her Husband All Acts of Parliament for any cause which any way may concern the Queen are such Statutes whereof the Judges ought to take Recognizances as of general Statutes though the matter doth only concern the capacity of the Queen yet it doth also concern all the Subjects of the Realm for every Subject hath interest in the King and none of his Subjects within his Laws are divided from the King who is Head and Sovereign so that his business concerns all the Realm and as the Realm hath interest in the King so and for the same Reason is the Queen being his Wife A man seized of divers Lands in Fee holden by Knight's Service some by Priority that is by ancient Feoffment holden of others and some other part holden of the King in posteriority the King granteth his Seigniory to the Queen during her life and afterwards the Tenant dieth his Son within Age in this case he shall have the Wardship of the Body and have the Prerogative even as the King himself should have had The Queen Consort or Dowager shall not be amerced if she be Nonsuited
in any Action or otherwise in which case any other Subject of what degree soever shall be amerced for in that case the Queen shall participate of the King's Prerogative But the Queen shall not in all cases have the same prerogative as the King 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 do contrary to the Opinion of some ancient Books as you may see Stamford's Prerogative Case 19. But no such Suit shall be made to the Queen but Actions as against other Lieges of the King according as the Case shall require For by the same Reason that the Queen may be Plaintiff or Demandant in Actions without the King by the same Reason she shall be Defendant without the part taking of such Prerogatives as do appertain to the King Against the King by his Prerogative nullum tempus occurrit but it is not so with the Queen 18 Edw. 3. 2. a. And plenarily by six months is a good Plea in a Quare Impedit brought by Philip Regina Anglia ibidem fol. 1. 13. b. Stamford's Prerogative Case 18. prope finem In the 22 Edw. 3. 6. 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 she be a person exempt Nevertheless by this short Case following may be observed That the Justices do not easily suffer any proceedings in Law against the Queen Wife or Widow but will hold with their Immunities so much as by Law they may A Writ of Dower was brought against Isabel Queen of England and Mother to the then King and the Court said to the Plaintiff The Queen is a person of Dignity and Excellency and we are of Opinion that she shall not answer to the Writ but that she should be sued unto by Petition And thereupon the Demandant dixit gratis and she prayed the Court to grant a Continuance of Action until another day so that in the mean time she might speak with the Queen But the Court would not agree to make a Continuance but said That upon her request they might give day prae re pertin and so it was done for the Queen's Counsel would not agree to a Continuance for thereby the Queen shall be accepted as answerable Neither do I suppose that I have digressed from any former purpose for making mention in those Cases concerning the Queen Consort For notwithstanding the intermarriage with the Sovereign King yet she is no other than a King 's Subject whether she be of a Foreign Nation or a Native born and though she be by the favour of the King solemnly crowned Queen yet that is but a Royal Ceremony and no essential Exception whereby she may not from henceforth be accounted in the rank of Noble Women And this hath been proved by the effect in the Reign of King Henry the Sixth when some of the Wives crowned Queens have been Arraigned of High Treason and therefore put to Trial by the Nobles of the Realm as her Peers The Wife of the King 's eldest Son hath also some Prerogatives in regard of the Excellency of her Husband which the Wives of other Noblemen have not For by the Statute of the Thrteenth of Edward the Third it is High Treason to violate the Wife of the King 's eldest Son and Heir Dutchesses and Countesses have special Honours appertaining to their Estates as Kneeling Tasting c. which things are more appertaining properly to the Heralds than to be here treated of Ladies in Reputation THE Wife or Widow of the Son and Heir of a Duke or Earl in the life time 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 Sovereign Prince and allowance of the Heralds but in legal proceedings they are not Priviledged nor to be named according to such Names of Dignity But the King may at his pleasure create such Men in the life of their Ancestors unto degrees of Lord's of his Parliament and then the Law is otherwise If a Noble Woman of Spain come into this Realm by safe Conduct or otherwise though in the Letters of safe Conduct by the King she be styled by such her Sovereign Title yet in the King's Courts of Justice she shall not be named by such Title though in common Speech she is styled a Lady An English Woman born doth taken to her Husband a French or Spanish Duke though he be made a Denizen yet she shall not bear his Title of Dignity in Legal Proceedings A German Woman is married to a Peer of the Realm and unless she be made a Denizen she cannot lawfully claim the Priviledges or Titles of her Husband no more than she can to have Dower or Joynture from him An English Woman doth take to her Husband an Irish Earl or if a Lord of Scotland though he be a Postnatus take an English Woman to his Wife their Wives shall not participate of their Husbands Titles of Dignity But if the King do create one of his Subjects of Scotland or Ireland a Peer of this Realm then shall he and his Wife enjoy all the Priviledges of a Nobleman But if an English man by the Emperor be made an Earl of the Empire his Wife shall not bear that Title of Honour All the Daughters of Dukes Marquisses and Earls are by the ancient Custome of the Realm styled Ladies and have precedency according to the Degrees of their Parents And of this Custome the Laws do take notice and give allowance for Honour and Decency But nevertheless in the King's Courts of Justice they bear not those Titles of Honour no more than the Sons of such Noble persons may do So in this point the Law is one way and the Honour and Courtesie of Ladies another And as a Civilian in like Case saith Aliud est jus aliud privilegium nevertheless the Books of our Law do make mention thereof and allow of it as a Courtesie though not as a Law Thus much of Women If I have been too large upon this Subject I crave their pardons and if too short I wish I had been more large for their Honour Yet let them compare their Conditions with that of their Neighbouring Nations and 't is believed they have reason to judge themselves the happiest Women in the World but Nemo sua sorte contentus None truly value what they do possess Birth Beauty Titles Riches in excess Are all a Plague if ought else we desire The loss of that makes all our joys on fire The Right Noble Frances Stewart dutchess dowager of Richmond and Lenox ◠a. The Rt. honble Ann Stuart Baroness of Castle Stuart in ye. Kingdome of Ireland Relict of the Rt. honble Iosias Baron of Castle Stuart and Daughter of Iohn Maddē of Rousky Castle in ye. County of
certain Lands in Escuage like as the Knight himself did of the King by Knights Service The beginning of giving Arms in Europe amongst Christians is supposed from the Holy Wars for the Turks paint them not And so with us about Henry the Third's time they became here more firmly established And when the Prince enobled any he usually gave them the particular of his bearing in Blazon Iohn Selden in his Preface fol. 5. where you may also see an Example in King Richard the Second But now there are five distinct sorts of Esquires observed and those that have been already spoken of are now in no request Of these sorts the principal at this day are the eldest Sons of Viscounts and Lord next are all Noblemens younger Sons then are accounted those that are select Esquires for the King's Body the next are Knights eldest Sons successively in a fourth rank are reckoned those unto whom the King himself together with the Title giveth Arms or createth Esquires by putting about their Necks a Silver Collar of SS and in former times upon their Heels a pair of white silvered Spurs whereupon at this day in the Western part of the Kingdom they be called White-spurs for distinction from Knights who were wont to wear gilt Spurs and to the first begotten Sons only of these doth this Title belong In the fifth and last place be those that have any superiour publick Office in the Kingdom as high Sheriffs Justices of the Peace c. or serve the King in any worshipful Calling At the Coronation of Kings and Queens Knights of the Bath are made men of worth and honourable blood to the end that their Majesties may be accompanied in their own Honours every of which Knights having two Gentlemen to attend them in that Ceremony who are ever after by that Service enabled to be Esquires during their lives But the name of Esquire in ancient time was a name of Charge and Office and first crept in amongst other Titles of Dignity and Worship so far as ever I could observe in the Reign of King Richard the Second vide Sir Thomas Smith de Republica Anglorum fol. 26. where he saith That the Esquire is no distinct Order of the Commonwealth A Serjeant of the King's Kitchin may bear the Name and Addition of Cook or Esquire according to the Opinion of Newton But Ienne saith Such Officers of his Majestie 's Houshold would be much grieved if they should be named by their Trade or Office Peradventure in that case the Writ may be good because of the Statute viz. 1 Hen. 5. ch 5. For the Statute is That he should be named of the Town Degree State Condition or Mystery and when he was named Cook he observed the Statute for he hath named him by his own name of Mystery and yet he may be in that case an Esquire and a Cook If a man be an Esquire or Gentleman only by Office and loseth the same he loseth also that title of Gentility Note That an Esquire or Gentleman is but an Addition to satisfie the said Statute but names of Dignity are parcel of the name And thereupon if a Praecipe quod reddat be against Iohn a Stiles Yeoman and recovery is had whereas the Tenant was a Gentleman yet the Recovery is good The same Law where a Release is made to Iohn a Stiles Yeoman who is a Gentleman and where addition is given by the party where it needeth not by the Law being no Dignity it is void So if a deed be made to a Gentleman by the name of a Yeoman for there is a great difference between Deeds and Writs If an Esquire be to be Arraigned of High Treason he may and ought to be tried per probos Legales homines that may expend Forty shillings of Freehold or be worth One hundred pounds in the value of Goods And so the Statute that doth speak of men of his condition hath always been put in ure Dyer 99. b. Note a Knight hath no other priviledge by Statute or Common Law The King may make an Esquire by Patent viz. Creamus te Armigerum c. Note the Preface to the printed Book of Titles of Honour 5. b. 318. By the statute 21. Hen. 8. chap. 13. amongst other things it is enacted that the Brethren and Sons born in Wedlock of every Knight being Spiritual men may every of them purchase License or Dispensation and receive take and keep two Parsonages or Benefices with cure of souls The Son or Sons of any Knight and heir apparent of an Esquire is priviledge to keep Greyhounds setting Doggs or Nets to take Pheasants or Partridges though he cannot dispend ten pounds in his own right or in his Wives right of Estate of Inheritance or of the value of thirty pounds of Estate for life By the precedent discourse of Knights Batchelors we understand that all persons by the common Law are compellable to take the degree of Knighthood or to fine if they are possest of such an Estate as the King and his Council shall judge fit to maintain that Port in their Country And his annual Revenue deemed fit for that Dignity and the fines imposed upon such as refused we find in our Histories and Statutes to vary with the times and certainly the best Esquires or at least none under the Reputation of Gentlemen were compelled although 't was at the King's pleasure And therefore 1 Edw. 2. Stat. de Militibus the Parliament saith Sanderson more for ease of the Subject than profit of the King limited it to such as had Twenty pounds per Annum and better and afterwards 't was raised to Thirty pounds and a plentiful Revenue in those times when a Dowry of Three thousand pounds per Annum to a Queen was deemed a great impoverishment to the Crown and Kingdom but the East and Western part of the World being laid open to the Merchants money began to be more common and by consequence Land to its value so that in the reign of King Charles the First Forty pounds per Annum being the rate set for such as ought to be made Knights or to fine many Farmers Leaseholders Merchants Inholders and others were called in whereby above 100 thousand pounds was brought into the Exchequer Notwithstanding which divers persons made Friends and took the Degree of Knighthood which occasioned the extinguishment of the ancient Tax For many Esquires by birth wealth and education who bore the chiefest Offices of Honour and Trust in the Commonwealth disdained to stoop or give place to those new dubbed Knights countenanced the Complaints of the common people against the Law it self as a grievance and prevailed so far in the following Parliament to get it repeal'd as you may see 17 Car. chap. 20. Since which time the difference between the Degree of Knighthood and Dignity of an Esquire consists only in Title a double rate in the Pole Tax and priority of place which as I before noted is often